Court to Expedite ID Law; City Issues ‘Cease and Desist'

The Tennessee Supreme Court  will expedite the state's challenge to last week’s ruling that the city of Memphis had standing to challenge the constitutionality of the state's voter-photo ID act, and that photo ID cards issued by the Memphis Public Library are acceptable for voting. The state also asked for a stay to halt the use of library cards, but the court was silent on that point. Yesterday, the city of Memphis sent a “cease and desist” letter to Tennessee Attorney General Robert Cooper demanding that his office instruct state election officials to tell local election commissioners they must accept photo library cards as valid identification. City officials say that state election officials are requiring library ID holders to vote with provisional ballots.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

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00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
08 - TN Court of Criminal Appeals
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TN Court of Appeals

MULUGETA ABEBE, ET AL. v. SOLOMON HAILE BIRHANE, ET AL.

Court: TN Court of Appeals

Attorneys:

Gary D. Copas, Nashville, Tennessee, for the appellants, Solomon Haile Birhane and Frehiwot Tesfagzi.

Lynda F. Jones and Maria Pardue, Nashville, Tennessee, for the appellees, Mulugeta Abebe, Eshetu Yalemwossen, and Girma Ejegu.

Judge: SWINEY

Mulugeta Abebe , Eshetu Yalemwossen, and Girma Ejegu (“Plaintiffs”) sued Solomon Haile Birhane2 and Frehiwot Tesfagzi (“Defendants”) seeking, in part, a declaration of the parties’ rights with regard to a Raceway Service Station (“the Raceway Store”) located in Hermitage, Tennessee. After a trial, the Trial Court entered its Final Order on October 18, 2010 finding and holding, inter alia, that Plaintiffs and Defendants are partners in the Raceway Store with each one of the five partners holding a 20% interest in the partnership, and that the parties had an agreement that once overhead was met the Raceway Store would repay Plaintiffs their capital contribution. Defendants appeal to this Court. We affirm.


BRADLEY COUNTY, TENNESSEE v. THE CITY OF CLEVELAND, TENNESSEE

Court: TN Court of Appeals

Attorneys:

Douglas S. Johnston, Jr. and Scott P. Tift, Nashville, Tennessee, and John Kimball, Cleveland, Tennessee, for the appellant, City of Cleveland, Tennessee.

James F. Logan, Jr., Cleveland, Tennessee, for the appellee, Bradley County, Tennessee.

Judge: SUSANO

The plaintiff in this action is Bradley County (“the County”). The sole defendant is the City of Cleveland (“the City”). The County’s complaint seeks a determination that the proceeds of a 2009 local option county sales tax increase, enacted shortly after an identical increase by the City, is to be distributed between the parties according to a contract (“the Contract”) the parties signed in 1967 as opposed to a statutory provision for distribution based on the site of collection of the tax. The City filed a counterclaim which, as amended, seeks a determination that the Contract is void; that the Contract does not control distribution of the proceeds of a 1982 tax increase; that the Contract does not control distribution of the proceeds of the 2009 tax increase; and that, by statute, the City is entitled to all of the proceeds of the 2009 tax increase on sales made inside the city limits through the City’s 2010 fiscal year. The trial court upheld the validity of the Contract and further held that the Contract, as amended twice, i.e., in 1972 and in 1980, controls distribution between the parties of the proceeds of the County’s 1982 tax increase. The court held that the applicable statute, rather than the Contract, controls distribution of the proceeds of the 2009 tax increase; this latter holding is not at issue in this appeal. The court further held that the City’s statutory right to the proceeds of the 2009 tax increase on sales in the City ended June 30, 2009, which equates with the City’s 2009 fiscal year. The City appeals. We affirm that part of the judgment upholding the validity of the Contract and that part applying the Contract to the distribution of the 1982 tax increase. We reverse that part of the judgment that held the City’s statutory right to proceeds from the 2009 tax increase ended June 30, 2009. We hold that the City is entitled to the 2009 tax increase on sales in the city through the City’s 2010 fiscal year.


JOSEPH J. LEVITT, JR. v. CITY OF OAK RIDGE, ET. AL.

Court: TN Court of Appeals

Attorneys:

Joseph J. Levitt, Jr., Knoxville, Tennessee, pro se.

John T. Batson, Jr. and Daniel R. Pilkington, Knoxville, Tennessee, for the appellees, City of Oak Ridge, Oak Ridge Board of Building and Housing Appeals, and Denny Boss.

Judge: MCCLARTY

This appeal involves the efforts of Oak Ridge’s Board of Building and Housing Code Appeals to demolish buildings in Applewood Apartment Complex pursuant to Tennessee Code Annotated section 13-21-101, Tennessee’s Slum Clearance and Redevelopment Statute. Owner filed a petition for writ of certiorari when the Board voted to demolish the buildings. The trial court granted the petition but granted the Board’s motion for summary judgment. Owner appeals. We reverse the grant of summary judgment on the issue of whether the Board acted without material evidence but affirm the grant of summary judgment on all other issues. The case is remanded for proceedings consistent with this opinion.


DENNIS R. MASSENGALE ET AL. v. CITY OF EAST RIDGE

Court: TN Court of Appeals

Attorneys:

Jeffrey P. Yarbro, Nashville, Tennessee, and Christopher Varner, Chattanooga, Tennessee, for the appellants, Dennis R. Massengale, Karen Massengale, Carnell Storie, Marion-Bradley Fireworks Retailers, and Wet Willy’s Fireworks Supermarkets of Tennessee, Inc.

Ronald D. Wells, Keith H. Grant and John R. Anderson, Chattanooga, Tennessee, for the appellee, City of East Ridge.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Steven A. Hart, Special Counsel, Office of the Attorney General, Nashville, Tennessee, for the appellee, Robert E. Cooper, Attorney General and Reporter.

Judge: SUSANO

The plaintiffs in this case allege that they are adversely affected by a statute that legalizes the sale of fireworks inside the city limits of East Ridge, despite a general ban on the sale of fireworks in any county with a population of greater than 200,000, e.g., Hamilton County. They allege that the statute is unconstitutional. There are two distinct groups of plaintiffs (both groups being collectively referred to as “the Plaintiffs”). One group alleges that they are residents of the city and own property or businesses in the city (“the Citizens” or “the Citizen Plaintiffs”). The Citizen Plaintiffs allege that the sale of fireworks will result in diminished property values and an increased risk of fire or explosion with attendant increases in fire insurance premiums. The second group alleges that they are either in the business of selling fireworks, or are members of a purported “association” of persons or entities in the business of selling fireworks (“the Sellers”). They allege that they have put forth much effort and expense to establish businesses outside East Ridge, where fireworks sales are legal, only to see their efforts thwarted by the enactment of an unconstitutional statute permitting illegal competition. The Plaintiffs moved the trial court to enter judgment on the pleadings by decreeing the statute to be unconstitutional on its face. Instead, the court dismissed the complaint for lack of standing, but did so without prejudice. The Plaintiffs appeal. We affirm.


HAROLD TOLLEY v. ATTORNEY GENERAL OF TENNESSEE, ET AL.

Court: TN Court of Appeals

Attorneys:

Harold Tolley, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William Young, Solicitor General; Pamela S. Lorch, Senior Counsel, for appellee, Attorney General of Tennessee, Tennessee Department of Corrections, Tennessee Board of Probation and Paroles and the State of Tennessee.

Judge: STAFFORD

Appellant inmate filed a petition for Declaratory Judgment in the Davidson County Chancery Court, arguing that Tennessee Code Annotated Section 40-35-501(i) is unconstitutional as applied to life sentences with the possibility of parole. The Appellee Department of Correction filed a motion to dismiss, arguing that the Appellant’s failure to seek a Declaratory Order from the Department of Correction constituted the failure to exhaust administrative remedies. The trial court granted the motion to dismiss. Discerning no error, we affirm.


TN Court of Criminal Appeals

ELMI ABDI v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Robert Brooks, Memphis, Tennessee, for the appellant, Elmi Abdi.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Petitioner, Elmi Abdi, of aggravated robbery, a Class B felony, and the trial court sentenced him as a Range III offender to thirty years in the Tennessee Department of Correction. This Court affirmed the Petitioner’s convictions and his status as a Range III offender on direct appeal. State v. Elmi Abdi, No. M2009-01614- CCA-R3-CD, 2010 WL 2977892 (Tenn. Crim. App., at Nashville, July 29, 2010), perm. app. denied (Tenn. Jan. 18, 2011). The Petitioner filed a pro se petition for post-conviction relief, which was amended by appointed counsel. The post-conviction court denied the petition after a hearing. On appeal, the Petitioner contends that he received the ineffective assistance of counsel at trial and during his sentencing. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s dismissal of his petition.


STATE OF TENNESSEE v. DAVID L. BRUMMITT

Court: TN Court of Criminal Appeals

Attorneys:

Gene G. Scott, Jr., Jonesborough, Tennessee, for the appellant, David L. Brummitt.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Barry Staubus, District Attorney General; and Julie R. Canter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Sullivan County Criminal Court Jury convicted the appellant, David L. Brummitt, of especially aggravated robbery, aggravated burglary, and reckless aggravated assault, and the trial court sentenced him to twenty-four, six, and four years, respectively. The trial court ordered that the appellant serve the six- and four-year sentences concurrently on probation but consecutively to the sentence of twenty-four years in confinement. On direct appeal, this court modified the appellant’s especially aggravated robbery conviction to aggravated robbery and remanded the case for sentencing as to that offense. State v. David L. Brummitt, No. E2009-01358-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 875, at *2 (Knoxville, Oct. 14, 2011), perm. to appeal denied, (Tenn. 2011). On remand, the trial court sentenced the appellant to twelve years for the aggravated robbery conviction. The trial court also ordered that the appellant serve the six- and four-year sentences in confinement, consecutively to each other, and consecutively to the twelve-year sentence. On appeal, the appellant contends that his twelve-year sentence for the aggravated robbery conviction is excessive and that the trial court’s resentencing him for the aggravated burglary and reckless aggravated assault convictions exceeded the scope of this court’s direct appeal opinion. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court properly sentenced the appellant for the aggravated robbery conviction but that the trial court did not have jurisdiction to resentence the appellant for the remaining convictions. Therefore, the appellant’s original sentences for aggravated burglary and reckless aggravated assault remain in effect.


STATE OF TENNESSEE v. KELLEY ELIZABETH CANNON

Court: TN Court of Criminal Appeals

Attorneys:

Peter J. Strianse, Nashville, Tennessee, for the appellant, Kelley Elizabeth Cannon.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Tory) Johnson, III, District Attorney General; Katrin N. Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

After a trial by jury, the defendant was found guilty of the first degree (premeditated) murder of her spouse and was sentenced to life in prison. On appeal, the defendant raises numerous challenges to her conviction, claiming that: (1) the evidence used to convict her was insufficient, (2) the trial court erred by failing to suppress certain evidence found by the police during a warrantless search of the residence that she formerly shared with the victim, (3) the trial court erred by admitting certain expert testimony, (4) the trial court erred by failing to suppress certain statements she made to police, (5) the trial court erred by admitting evidence relating to a prior domestic disturbance between the defendant and the victim, and (6) the trial court erred by failing to grant a mistrial. After carefully reviewing the record and the arguments of the parties, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. JOHN S. CRANDALL

Court: TN Court of Criminal Appeals

Attorneys:

John S. Crandall, Hohenwald, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; T. Michel Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se defendant, John S. Crandall, was convicted in a Wayne County bench trial of failure to have a valid driver’s license, failure to wear a safety belt, failure to stop at a stop sign, violation of the financial responsibility law, and driving with an expired registration. On appeal, he challenges the constitutionality of the Tennessee statutes requiring him to wear a safety belt, purchase automobile insurance, and obtain a Tennessee driver’s license when his driver’s license from his former state of residence was not expired. Following our review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. JOHNNY LEON HATCHER

Court: TN Court of Criminal Appeals

Attorneys:

William B. Lockert, III, 3rd District Public Defender; Dawn Kavanagh, Assistant Public Defender, Ashland City, Tennessee, for the appellant, Johnny Leon Hatcher

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa Donegan, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WILLIAMS

The defendant, Johnny Leon Hatcher, appeals the sentencing decision of the Humphreys County Circuit Court following the revocation of his probationary sentence. The defendant pled guilty to six counts of manufacturing, delivery, sale, or possession of methamphetamine and received an effective six-year sentence, one year to be served in confinement and the balance on community corrections. A violation report was filed and, following a hearing, the trial court revoked the defendant’s sentence and ordered the balance of the original sentence to be served in confinement. On appeal, the defendant does not contest the trial court’s revocation but argues that the court erred in ordering him to serve the sentence in confinement. After review, we conclude no error occurred and affirm the decision of the trial court.


RONNIE LEE JOHNSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jason Francis Hicks, of Cookville, Tennessee, for the appellant, Ronnie Lee Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Randall A. York, District Attorney General; and Anthony Craighead, Deputy District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

After a trial by jury, the petitioner was found guilty of possession of over .5 grams of cocaine with intent to sell, a Class B felony, and possession of dihydrocodeinone, a Class A misdemeanor. He was sentenced to seventeen years for possession of cocaine and to a consecutive eleven months and twenty-nine days for possession of dihydrocodeinone, for a total effective sentence of almost eighteen years. His convictions were affirmed by this court on direct appeal. The petitioner filed a pro se petition for post-conviction relief and was appointed counsel. Following an evidentiary hearing, the post-conviction court denied all claims for relief. On appeal, the petitioner claims that the post-conviction court erred in denying his motion for recusal and erred in ruling that the petitioner had not received ineffective assistance of counsel at trial. After carefully reviewing the record and the arguments of the parties, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. NGOC DIEN NGUYEN

Court: TN Court of Criminal Appeals

Attorneys:

David A. Doyle, District Public Defender (on appeal); and Terry Frizzell, Hendersonville, Tennessee (at trial), for the appellant, Ngoc Dien Nguyen.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Lawrence R. Whitley, District Attorney General; and Tara Wyllie and Thomas B. Dean, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Ngoc Dien Nguyen, pled guilty to theft over $1,000 and attempted theft over $1,000 and was sentenced as a Range I offender to an effective term of six years in the Department of Correction. The court ordered that the six-year sentence be served consecutively to a Robertson County sentence and a California sentence and that the defendant pay $9,462 in restitution to the victim. On appeal, the defendant challenges the award of restitution. After review, we affirm the defendant’s convictions but remand for a new hearing as to restitution.


STATE OF TENNESSEE v. WILLIAM FRANKLIN ROBINETTE

Court: TN Court of Criminal Appeals

Attorneys:

Lindsey Lane, Greeneville, Tennessee, for the appellant, William Franklin Robinette.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Cecil Mills, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

William Franklin Robinette (“the Defendant”) appeals his jury convictions for theft of property of $1,000 or more but less than $10,000 and theft of property of $10,000 or more but less than $60,000. He was sentenced as a multiple offender to an effective sentence of ten years and was fined $10,000. On appeal, he challenges the sufficiency of the evidence supporting his convictions and the length of his sentence. After a thorough review of the record and the applicable law, we affirm the Defendant’s convictions and sentences.


Knoxville Law School Drops Suit Against ABA

Duncan School of Law in Knoxville has dropped its federal antitrust suit against the American Bar Association (ABA) over the denial of its bid for provisional accreditation and will file a new application for provisional accreditation, according to a jointly stipulated order of dismissal filed Monday in U.S. District Court in Knoxville. The ABA Journal reports that the school will also withdraw its appeal of an earlier decision from an ABA appeal panel.


Jurors Begin Deliberating Baumgartner Case

Jurors deciding the fate of former Knox County Criminal Court Judge Richard Baumgartner began deliberations in the case at 2 p.m. today and retired for the evening without reaching a verdict. The jury spent about two hours conferring about the case before U.S. District Judge Ronnie Greer sent them home, reports the News Sentinel. The panel will return Wednesday morning.


Federal Judge Hears Plan to Improve Jail

Responding to complaints that jail administrators ignore or delay requests for medical treatment, withhold nutritious meals and fail to maintain a safe and sanitary facility, lawyers for Maury County were in court yesterday detailing improvements taking place at the county jail. The county is facing 23 suits filed by inmates, according to the Columbia Daily Herald. U.S. District Court Judge William Haynes seemed most concerned by claims that inmates were losing “100, 35, and 50 pounds” and said that protecting their health was the most important priority for the facility.


Vandy Law Grad First African American to Lead Arkansas House

Vanderbilt Law grad Darrin Williams will make history in January when he becomes the first African American speaker of the Arkansas General Assembly. He will also be the first black person to hold a statewide elected office in Arkansas since the early 1870s. Vanderbilt Law School has more about the accomplishments of this 1993 graduate.


Former Lawyer Opens Gluten-Free Restaurant

Former Chattanooga lawyer Karen Wilson is bringing her vision for a gluten-free restaurant in Chattanooga to life. Crave Café & Bakery will open in Warehouse Row's food court in January. While putting herself through college and law school, Wilson worked in the restaurant industry. After discovering her intolerance to gluten, she started baking, cooking and experimenting more. Nooga.com has the story


Candidates Reportedly Pre-Positioning Lawyers

With one week to go in the presidential campaign, Inside Counsel Magazine is reporting that President Barack Obama and Gov. Mitt Romney are lining up several high-powered lawyers to handle any post-election disputes. Obama has reached out to his former White House Counsel Robert Bauer, a former partner at Perkins Coie. Romney has tapped Benjamin Ginsberg, a partner at Patton Boggs, who served as chief legal counsel for George W. Bush's presidential campaigns in 2000 and 2004. According to the article, the two lawyers already have been “quiet players” in the respective campaigns. Among other tasks, they negotiated deals for all four of the election debates. Read more


Tennessee Dems, Conservatives Hit Desjarlais Hard

On the heels of news that U.S. Rep. Scott Desjarlais was allegedly involved with a second woman who was his patient, Tennessee Democratic Party Chairman Chip Forrester called the congressman a “dirty politician,” was not fit to be a doctor because he “sleeps with his patients” and “prescribes drugs on dates.” While Desjarlais’ office discounted claims of an alleged second woman, a conservative group today joined the call for him to resign. Tennessee Conservative Union Chairman Lloyd Daugherty told the Times Free Press that the physician’s past actions reach “a level of hypocrisy that is simply untenable."


Law Professor Changed State's Voting Rights Law

When new Yale Law graduate and native New Yorker Jim Blumstein moved to Nashville in 1970 to begin his job on Vanderbilt University’s law faculty, one of the first things he did was register to vote for the upcoming primary. But he was denied that right under a provision of Tennessee law that required new residents to live in the state for one year. Blumstein filed suit against the state, claiming that the requirement violated the Equal Protection Clause of the 14th Amendment. He also insisted on submitting a provisional ballot in a sealed envelope so his vote could be counted if his suit prevailed -- a practice that is in law today. The case, Dunn v. Blumstein, went to the U.S. Supreme Court, and in 1972, the court found that Tennessee’s one-year minimum residency rule violated the Constitution. Vanderbilt Lawyer has this story about Blumstein, still a professor at the school, and how he helped change Tennessee's voting rights law.


Court Declines to Hear ‘Personhood’ Case

The U.S. Supreme Court yesterday declined to take up an Oklahoma Supreme Court case that found a proposal granting "personhood" to human embryos to be an improper ban on abortion. The proposed constitutional amendment would have given human embryos the rights and privileges of citizens in Oklahoma, but it was challenged before it could be placed on the ballot. The Associated Press has more


Details for Supreme Court Museum Dedication Announced

Members of the legal community are invited to attend the 75th anniversary of the dedication of the Tennessee Supreme Court Building and unveiling of the new Tennessee Judiciary Museum on Dec. 4. The evening will begin with a 6 p.m. reception at the Hermitage Hotel, followed by a tour of the new Tennessee Judiciary Museum. A shuttle will be provided throughout the evening. The museum is located in the Supreme Court law library, and for one week only, the display will include hand-written pages from the original 1796, 1835 and 1870 Constitutions. Tickets for this event are $100, which includes the reception, tour and a souvenir print of the Supreme Court Building. To purchase tickets contact Joy Day at (615) 771-5008 or jday@sutter-law.com. Download an invitation


Catch Live Presentation of '12 Anger Men'

Through Nov. 4, StudioTenn will present the classic play 12 Angry Men at the historic Williamson County Courthouse in downtown Franklin. Retired Judge Russ Heldman presides over the production. The company’s director says he is excited about challenging the boundaries between actor and audience, and creating a new level of interactivity and intimacy made possible by the venue. Buy tickets at the Franklin Theater Box Office, (615) 538-2076 or online at StudioTenn.com. Or learn more from Williamson Source.


Landlord Tenant Clinic Wraps Up Pro Bono Month

Celebrate Pro Bono Month wraps up with a final event in Nashville Wednesday. Lawyers with Bass Berry & Sims PLC join forces with the Nashville Pro Bono Program and students with the Vanderbilt University Law School Legal Aid Society to help low income clients with landlord/tenant disputes. The clinic will run from 10 a.m. to noon at Legal Aid, 300 Deaderick St. Lawyers interested in volunteering should call Lucinda Smith at (615) 780- 7127. Clients seeking assistance should call (615) 244-6610.


Don’t Miss Hot Topics in Real Estate Nov. 9

Local and national experts in the field of real estate will speak at next week’s Hot Topics in Real Estate CLE. The program, co-sponsored with the Tennessee Land Title Associations, will run from 11:30 a.m. to 4 p.m. at the AT&T Building in Nashville. Learn more or register here


 
 

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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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