Former Senator, Ambassador Howard Baker Dies at 88

Former Senate Majority Leader Howard Baker died today at his home in Huntsville, the Associated Press reports. He was 88. Baker, who served 18 years in the U.S. Senate, was the first Republican to be popularly elected to the Senate from Tennessee, and later served as a chief of staff to President Ronald Reagan and as U.S. Ambassador to Japan. Baker was a major figure in national politics for many years. During the 1973 Watergate hearings, Baker helped focus a nation’s attention on President Richard Nixon’s involvement, turning what many had seen as a political scandal into a phenomenon that would shake up American politics. In 1984, he received the Presidential Medal of Freedom, the nation’s highest civilian honor. “Howard Baker was Tennessee’s favorite son, one of America’s finest leaders and for Honey and me an indispensable friend,” U.S. Sen. Lamar Alexander said in a statement. “He built our state’s two-party political system and inspired three generations to try to build a better state and country," The Tennessean reports. Baker was also a well-respected lawyer with Baker Donelson, the firm that his grandfather founded. He spoke about the importance of the law and the profession during a 2005 interview for the Tennessee Bar Association.

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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
09 - TN Court of Criminal Appeals
03 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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TN Court of Appeals

LEO BERG v. JULIE ANN RUTLEDGE BERG

Court: TN Court of Appeals

Attorneys:

Andrew M. Cate, Brentwood, Tennessee, for the appellant, Julie Ann Rutledge Berg.

Sarah Richter Perky and John J. Hollins, Jr., Nashville, Tennessee, for the appellee, Leo Berg.

Judge: CLEMENT

In this appeal from a final divorce decree, Wife takes issue with a number of the trial court’s financial decisions. Specifically, Wife contends the trial court erred in the assessment of spousal support, in classifying marital property as Husband’s separate property, in valuing Husband’s woodworking business, in dividing the marital estate, in finding she dissipated the marital estate, in declining to find that Husband dissipated the estate, in failing to sanction Husband for non-production of documents, and by sanctioning her $100,000 under Tenn. R. Civ. P. 37.02 for abuse of discovery. Finally, Wife alleges error in failing to grant the divorce to both parties and contends the trial court should not have verbatim adopted portions of Husband’s proposed findings of fact and conclusions of law as its final judgment. We affirm the trial court’s rulings on these issues. Husband also seeks his attorney’s fees incurred on appeal which we respectfully deny.


FEDERAL NATIONAL MORTGAGE ASSOCIATION V. DEANNA R. LAMBERT

Court: TN Court of Appeals

Attorneys:

Deanna R. Lambert, Pikeville, Tennessee, Pro Se.

Joshua H. Threadcraft, Birmingham, Alabama, for the appellee, Federal National Mortgage Association.

Judge: MCCLARTY

This is a detainer action in which Fannie Mae was awarded a judgment of possession of Defendant’s property in sessions court. Defendant refused to vacate the property and appealed to the circuit court. Fannie Mae filed a motion for summary judgment, while Defendant sought to void the judgment of possession. The trial court granted the motion for summary judgment and upheld the foreclosure sale. Defendant appeals. We affirm.


DERECK CRUZ LEGENS v. BOBBY LECORNU, ET AL.
With concurring opinion.

Court: TN Court of Appeals

Attorneys:

James T. Powell, Union City, Tennessee, for the appellant, Bobby Lecornu, et al

James H. Bradberry, Dresden, Tennessee, for the appellee, Dereck Cruz Legens

Judge: HIGHERS

This is an appeal from a bench trial in a suit over the sale of a used vehicle. The trial court originally ruled in favor of the seller-defendants, finding that the plaintiff-buyer failed to meet his burden of proving fraud or misrepresentation in the sale of the vehicle. The court found that defendant-sellers had violated one subsection of the Tennessee Consumer Protection Act, but that plaintiff-buyer had failed to prove any actual damages, so the trial court dismissed the complaint. Upon considering the plaintiff-buyer’s motion to alter or amend, the trial court changed its original decision and found that the defendant-sellers had engaged in fraud, and the court rescinded the sale of the vehicle. Upon considering plaintiffbuyer’s second motion to alter or amend, the trial court clarified its ruling and awarded attorney’s fees to the plaintiff-buyer. Both parties appeal. For the following reasons, we reverse the trial court’s decision, reinstate its original ruling, and remand for further proceedings consistent with this opinion.


DIANA ROBERTS, ET. AL. V. SUE PRILL, M.D., ET. AL.

Court: TN Court of Appeals

Attorneys:

Robert P. Starnes, Kingsport, Tennessee, for the appellants, Diana Roberts, individually and as administratix of the Estate of Stanley Roberts.

Charles T. Herndon, IV and Elizabeth Hutton, Johnson City, Tennessee, for the appellees, Sue Prill, M.D. and Blue Ridge Medical Specialists, P.C.

Judge: MCCLARTY

This is a health care liability action arising from the death of Decedent. Defendants moved to dismiss the action for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court agreed and dismissed the action without prejudice. Plaintiff appeals the dismissal to this court. We affirm the trial court’s dismissal.


VODAFONE AMERICAS HOLDINGS INC. & SUBSIDIARIES v. RICHARD H. ROBERTS, COMMISSIONER OF REVENUE, STATE OF TENNESSEE
CORRECTION: Dissenting opinion added.

Court: TN Court of Appeals

Attorneys:

Michael D. Sontag, Stephen J. Jasper, and Ashley N. Bassel, Nashville, Tennessee, for the appellant, Vodafone Americas Holdings, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, Charles L. Lewis, Deputy Attorney General, and Talmage M. Watts, Senior Counsel, Nashville, Tennessee, for the appellee, Richard H. Roberts, Commissioner of Revenue, State of Tennessee.

Judge: BENNETT

At issue in this case is the methodology by which multi-state taxpayers are to compute their liability for franchise and excise taxes to Tennessee and, specifically, the authority of the Commissioner of Revenue to require the taxpayers to use an apportionment methodology other than the standard cost of performance methodology codified in Tenn. Code Ann. §§ 67-4-2012 and 67-4-2110. Plaintiffs, taxpayers that provide wireless communication and data services within and without Tennessee, contend they are entitled to apportion their receipts (income) based upon Tennessee’s standard apportionment formulas because the majority of their “earnings producing activities” occurred in a state other than Tennessee. The Commissioner of Revenue disagreed, insisting that Plaintiffs’ approach, even if statistically correct and derived from the language of Tenn. Code Ann. § 67-4-2012(i)(2), fails to meet the higher goal of fairly representing the business Plaintiffs derive from Tennessee. For this reason the Commissioner, acting pursuant to Tenn. Code Ann. § 67-4-2014(a), varied the standard formula requiring Plaintiffs to include “as Tennessee sales” its receipts from service provided to customers with Tennessee billing addresses. The trial court affirmed the decision. In this appeal, Plaintiffs contend the Commissioner does not have authority to impose a variance unless “unusual fact situations,” which are unique to the particular taxpayers, produce “incongruous results” unintended by Tenn. Code Ann. § 67-4-2012; they also insist that no unusual fact situations exist and that no incongruous results occurred when the statutorily-mandated cost of performance methodology was applied. We have determined that the Commissioner acted within the scope of the discretion granted to him by the statutes and rules. Therefore, we affirm the trial court’s decision.


TN Court of Criminal Appeals

OSCAR T. BERRY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Oscar T. Berry, Tiptonville, Tennessee, Pro Se

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; Victor S. Johnson, District Attorney General; Roger Moore, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Oscar Berry, was convicted of first degree murder in 1991 and was sentenced to life imprisonment. He filed a direct appeal of his conviction, which was dismissed by this Court in 1992. State v. Oscar Thomas Berry, No. 01-C01-9201-CR-00033, 1992 WL 275402 (Tenn. Crim. App., at Nashville, Oct. 8, 1992). His petition for post-conviction relief, filed in 1997, was dismissed by the trial court as untimely. In 2013, Petitioner filed a motion to reopen the post-conviction proceedings. He contended that several recent decisions by the United States Supreme Court established constitutional rights in post-conviction proceedings that did not exist at the time of his conviction, thereby allowing his case to be re-opened under the authority of Tennessee Code Annotated § 40-30-117(a)(1). The trial court rejected his theory and dismissed his motion. After careful review of the controlling law, we affirm.


STATE OF TENNESSEE v. JUSTIN DAVID FIFE

Court: TN Court of Criminal Appeals

Attorneys:

Michael T. Pugh, Clarksville, Tennessee, for the appellant, Justin David Fife.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; John W. Carney, District Attorney General; Chris Dotson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Circuit Court of Montgomery County revoked the probation of Appellant, Justin David Fife, after he failed to report that he had been arrested for assault and was found to be in “constructive possession” of a handgun. He argues on appeal that the gun was not his, that the discovery of the gun was the product of an illegal search, and that the trial court erred by denying his motion to suppress the evidence about the weapon. After carefully examining the evidence, we affirm the Circuit Court’s judgment.


MONTREL GILLIAM v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

R. Todd Mosley (on appeal) and James P. DeRossitt, IV (at hearing), Memphis, Tennessee, for the Petitioner-Appellant, Montrel Gilliam.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Montrel Gilliam, appeals from the denial of post-conviction relief by the Criminal Court for Shelby County. He was convicted of first degree premeditated murder and three counts of attempted first degree murder and received an effective sentence of life imprisonment plus sixty-seven years in the Tennessee Department of Correction. On appeal, the Petitioner argues that he received ineffective assistance of counsel. Upon our review, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. WALTER LEE HICKS, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Donna Orr Hargrove, District Public Defender and Michael J. Collins, Assistant Public Defender, for the appellant, Walter Lee Hicks, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Walter Lee Hicks Jr., was convicted by a Marshall County jury of numerous offenses that arose from an encounter with an officer of the Tennessee Highway Patrol. The sentences imposed included four years for reckless endangerment with a deadly weapon, eight years for evading arrest and creating a risk of death and injury, and five years for giving a false report. The trial court ordered that the sentences be served consecutively, with all remaining sentences to be served concurrently, for a total effective sentence of seventeen years at thirty-five percent. Appellant argues (1) that the evidence was insufficient to support his convictions for reckless endangerment and giving a false report, and (2) that the sentence imposed was excessive and contrary to law. After thoroughly examining the record, we find no error in either the verdicts or the sentence, and we affirm the trial court. However, we remand to the trial court for correction of the judgment to reflect that Appellant’s convictions for assault and felony reckless endangerment are merged.


STATE OF TENNESSEE v. KENNETH KRASOVIC

Court: TN Court of Criminal Appeals

Attorneys:

Joseph E. Ford, Winchester, Tennessee for the appellant, Kenneth Krasovic.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; J. Michael Taylor, District Attorney General; David L. Shinn, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Kenneth Krasovic, was charged with one count of vehicular homicide by reckless conduct and five counts of reckless endangerment with a deadly weapon stemming from an automobile crash that occurred in Grundy County. The jury found Appellant guilty on all counts and the trial court sentenced Appellant to a total effective sentence of twelve years and six months. Appellant filed a motion for a new trial which was denied after a hearing. Appellant then filed this appeal, arguing (1) that the evidence was insufficient to support the convictions, and (2) that the trial court improperly limited counsel’s closing argument as to the defense of “sudden emergency.” Upon review of the record, we find that the evidence presented at trial was sufficient to support the convictions and that there was no improper limitation of defense counsel’s closing argument. We affirm the decision of the trial court.


STATE OF TENNESSEE V. ASHLEY K. MOYERS

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mack Garner, Maryville, Tennessee (at trial), for the appellant, Ashley K. Moyers.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Mike Flynn, District Attorney General; and Matthew Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Ashley K. Moyers (“the Defendant”) was convicted by a jury of sale or delivery of a Schedule II drug in a drug-free zone. Following a sentencing hearing, the trial court sentenced the Defendant to four years’ incarceration and imposed the $40,000 fine assessed by the jury. On appeal, the Defendant challenges the sufficiency of the evidence supporting her conviction. She also contends that her $40,000 fine is excessive. After a thorough review of the record and the applicable law, we affirm the Defendant’s conviction but decrease the Defendant’s fine from $40,000 to $2,000.


STATE OF TENNESSEE v. DANIEL MUHAMMAD

Court: TN Court of Criminal Appeals

Attorneys:

Lance R. Chism, Memphis, Tennessee, (on appeal); Daryl Gray and David Stowers, Memphis, Tennessee, (at trial), for the appellant, Daniel Muhammad.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Amy P. Weirich, District Attorney General; Eric Christensen and Megan Fowler, Assistant District Attorneys General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Daniel Muhammad, and his co-defendant Michael Taylor were indicted by the Shelby County Grand Jury for aggravated arson. Defendant filed a motion to have his case severed from that of his co-defendant. The trial court denied Defendant’s motion. Following a jury trial, Defendant was convicted of the lesser included offense of facilitation of aggravated arson. The jury was unable to reach a verdict as to co-defendant Taylor, and the trial court declared a mistrial. Defendant was sentenced as a Range II multiple offender to 12 years of incarceration. Defendant appeals his conviction and raises the following issues for our review: 1) whether the trial court abused its discretion in denying Defendant’s motion to sever; 2) whether the trial court erred by not granting Defendant’s motion for a mistrial; and 3) whether the evidence was sufficient to sustain Defendant’s conviction. After a careful review of the record and the briefs of the parties, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. SHIRA JEAN STAFFORD

Court: TN Court of Criminal Appeals

Attorneys:

Thomas H. Bilbrey, Layfayette, Tennessee, for the Appellant, Shira Jean Stafford.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Tom P. Thompson, District Attorney General; Edwin Sadler, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: SMITH

Appellant, Shira Jean Stafford, was indicted by the Jackson County Grand Jury for preventing or obstructing a law enforcement officer from effecting a stop, frisk, halt, or arrest in violation of Tennessee Code Annotated section 39-16-602. She was convicted by a jury and sentenced to six months, to be served on probation. After the denial of a motion for new trial, she appealed. Appellant challenges the sufficiency of the evidence; the trial court’s decision to allow evidence regarding a civil case during the criminal trial; and the trial court’s failure to issue a curative instruction to the jury. After a review of the record and applicable authorities, we affirm the judgment of the trial court.


DENNIS WADE SUTTLES v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Daniel E. Kirsch, Nashville, Tennessee, for the appellant, Dennis Wade Suttles.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Senior Counsel; Randall E. Nichols, District Attorney General; and Leland L. Price, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Dennis Wade Suttles, appeals from the trial court’s denial of his petition in which he sought relief from his death sentence, claiming that he was intellectually disabled. On appeal, the petitioner contends that the trial court erred in denying (1) his petition for writ of error coram nobis, (2) his motion for a declaratory judgment, and (3) his stand-alone claim under the intellectual disability provisions in Tennessee Code Annotated section 39-13-203. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.


TN Attorney General Opinions

Lawful Sale of Fireworks in Certain Municipalities

Court: TN Attorney General Opinions

Date: 2014-06-24

Opinion Number: 63


City’s Ability to Contract with Out-of-State Water Commission

Court: TN Attorney General Opinions

Date: 2014-06-25

Opinion Number: 65


Qualifying Jurors and Assigning Jury-Service Dates Online

Court: TN Attorney General Opinions

Date: 2014-06-25

Opinion Number: 64


Court Strikes Down Obama Appointments; Rules Against Protest Buffers

The U.S. Supreme Court has struck down President Obama’s three recess appointments to the National Labor Relations Board, the ABA Journal reports. In his opinion for the court today, Justice Stephen G. Breyer said Obama lacked the power to make the recess appointments during a three-day recess in January 2012 because the time period was too short. The Court also ruled today that a Massachusetts law banning abortion-clinic protests within a 35-foot buffer zone violates the First Amendment rights of protesters. Chief Justice John G. Roberts Jr. wrote the opinion for the court, which said the 35-foot buffer zone isn't narrowly tailored to carry out the state's aims of ensuring safety, preventing harassment and keeping clinic entrances free of obstruction. In a major decision yesterday, the Court ruled that police generally must get a warrant before searching the cellphone of a person who is arrested. Several more decisions are expected before the Court wraps up its session on June 30.


Newly Elected DA Talks Domestic Violence Culture

When District Attorney Glenn Funk takes office on Sept. 1, one of his tasks will be to change the "culture in the community" surrounding domestic violence. In a statement released yesterday, Funk said he plans to establish a six-attorney Domestic Violence Unit that will meet with both victims and investigating officers prior to court in order to be completely prepared to handle the case. “The DA's office will partner with agencies from across the county to work on this issue, because in order to change the culture in the community, the whole community needs to be involved." Fox 17 News has more from Funk, who will be only the second DA to serve the county in the past 27 years.


Attorneys Among 25 Nashvillians Noted for Shaping City

As the Nashville Scene celebrates its 25 anniversary, it put together a list of 25 people who had a “sizable, demonstrable impact” on Nashville over the past 25 years. Attorneys David Tarpley and Gordon Bonnyman were among those listed, noted for their work with the Legal Aid Society and Tennessee Justice Center, respectively, as was former mayor Bill Purcell, who was lauded for "shaping a city vision here that rocks us to this day."  The publication also declared, “David Tarpley and Gordon Bonnyman, two consummate Southern gentlemen, exemplify the best of Nashville's legal profession.”


Federal Appeals Court Strikes Down Gay Marriage Bans

A federal appeals court in Denver ruled for the first time yesterday that states cannot prevent gay couples from getting married, extending the movement's legal winning streak and bringing the issue a big step closer to the U.S. Supreme Court. The 2-1 decision by the 10th U.S. Circuit Court of Appeals panel upheld a lower-court ruling that struck down Utah's gay marriage ban. It becomes law in the six states covered by the 10th Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. The panel immediately put the ruling on hold pending an appeal. The Utah attorney general's office planned to appeal the decision but it was assessing whether to go directly to the U.S. Supreme Court or ask the entire 10th Circuit to review the ruling, spokeswoman Missy Larsen said. The Chattanooga Times Free Press has more from the Associated Press.


General Sessions Judge Honored At Retirement Reception

Family and friends gathered Tuesday to honor the retirement of longtime McMinn County General Sessions Judge James Watson. McMinn County Mayor John Gentry presented Watson a framed resolution honoring his service. The resolution was passed unanimously by the McMinn County Commission at its meeting on June 16. Watson was elected as General Sessions Judge in 1986. He decided not to run for re-election this year and will be succeeded on July 1 by Wylie Richardson. The Daily Post Athenian has more.


DCS Computer Errors Have Human Impact

According to a Tennessean editorial, the Department of Children’s Services’ four-year-old computer system TFACTS is still riddled with glitches, an issue that the newspaper claims was made rosier than the reality in a recent progress report. The system, which tracks child deaths, caseloads and other core tasks, was supposed to be fixed in January but will not be completed until October at the earliest. “This is not a case about a computer system,” U.S. District Judge Todd J. Campbell said. “It’s about actual care for actual foster children.”


Nashville Firm Announces Name Change, New Location

The Nashville law firm Barrett Johnston LLC on July 1 will change its name to Barrett Johnston Martin & Garrison, including Jerry Martin and Dave Garrison as named partners. Scott Tift has been promoted to partner as well. In a press release, the firm also announced it has moved offices to the Bank of America Plaza in downtown Nashville.


Judge Denies Move to Stop 'Rocky Top' Vote

U.S. District Judge Tom Varlan today denied a move for an injunction filed by the House of Bryant Publications to stop Lake City’s proposed name change to Rocky Top. The company owns the rights to the famous bluegrass ballad “Rocky Top.” Judge Varlan said attorneys for House of Bryant showed no reason why he should delay the vote while they appealed his decision dismissing a lawsuit against the name change. Knoxnews has more.


Opinion: Defeating Amendment 2 Threatens Impartiality of Judiciary

If Amendment 2 fails in the November election, it could potentially open the door for political grandstanding in a branch of government that was intended to be fair and impartial, Nashville attorney Nancy Krider Corley states in an opinion piece published Monday in the Tennessean. “The goal of appellate courts is to create a fair and impartial judicial system that will review each case for its merits and rule according to the law,” Corley states. “It is critical that our courts are not subject to partisan politics and these tactics.”


Chief Justice Spreading Message about Fair Courts

Tennessee Supreme Court Chief Justice Gary Wade sat down last week with mayors, judges, a police union representative and lawyers in Chattanooga to broaden support for his and his fellow justices’ retention in the Aug. 7 election. Lt. Gov. Ron Ramsey has pushed to oust Wade and fellow justices Connie Clark and Sharon Lee. Speaking with local media at the Davis and Hoss Law Firm late Friday afternoon, Wade said he’d never endorsed another justice and that the criticisms fall short, as he is allowed to “uphold the integrity” of the court by speaking favorably of judges whose work he reviews. The Columbia Daily Herald has more.


Nashville Attorney Kicks Off Mayoral Campaign

Charles Robert Bone formally launched his mayoral campaign last night with an event full of entrepreneurs, lawyers and lobbyists. Bone, an attorney, businessman and Democratic Party fund-raiser, pledged to keep Nashville moving ahead as a business and tourism hub while also tackling its toughest problems, including poverty, homelessness and deficiencies in the mass transit system. Bone’s only declared opponent right now for the August 2015 election is Metro Councilman Megan Barry, though the Tennessean predicts other candidates are surely coming as Dean prepares to leave office after two terms.


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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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