Business Torts Roadshow coming in December

The TennBarU Business Torts Roadshow will be crossing the state in December presenting a program on Trade Secrets, the Duty of Loyalty & Lost Profits. At stops in Memphis on Dec. 9, Nashville on Dec. 10 and Knoxville on Dec. 12, Memphis attorney Daniel Van Horn of Butler, Snow, O'Mara, Stevens & Cannada, PLLC will be joined by Michael Costello and Brent McDade of the Decosimo CPA firm in Chattanooga. The seminars will cover Tennessee law with regard to the identification and protection of trade secrets, relief that may be awarded for misappropriation of trade secrets, the parameters of the common law duty of loyalty in the employment setting, relief that can be awarded for breach of the duty of loyalty and the legal and practical issues with proving lost profits damages.

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TODAY'S OPINIONS
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F. CHRIS CAWOOD v. LINDA BOOTH, ET AL.

Court: TCA

Attorneys:

Dan Channing Stanley, Knoxville, Tennessee, for the appellant, F. Chris Cawood.

John C. Duffy, Knoxville, Tennessee, for the appellees, Linda Booth, Dennis Worley, Randy Scarbrough, and Jon French.

Judge: SUSANO

The plaintiff, F. Chris Cawood, is an attorney. He represented Tammy Clark ("the Client") in adivorce case. During the post-judgment phase of that representation, the plaintiff and the Client engaged in a sexual relationship. On occasion, while in the plaintiff's office, the plaintiff would masturbate in the presence of the Client, following which he would give her a credit on her bill. After she complained to local authorities, the Roane County Sheriff's Department equipped the Client with concealed audio and video equipment. Thereafter, unbeknownst to the plaintiff, she videotaped him while he was masturbating. During this event, the Client hit him on the buttocks and pinched his nipples. Following this event, the videotape was placed under the control of Linda Booth of the Sheriff's department. Booth gave the video to another investigator, Dennis Worley, who happens to be the Client's uncle. Worley was not involved in the investigation but wanted to see the videotape to ascertain if his niece had done anything illegal. Worley viewed the videotape in an office shared by officers Randy Scarbrough and Jon French. During the viewing, the door to the office was open. The video was viewed not only by Worley, but also by Scarbrough and French, a bail bondsman who was passing by the office, and others. The plaintiff filed suit against Booth, Worley, Scarbrough and French alleging (1) a violation of the Wiretapping and Electronic Surveillance Act of 1994, (2) invasion of privacy by public disclosure of private facts, and (3) outrageous conduct. The trial court granted all defendants summary judgment as to all claims. Plaintiff appeals. We vacate the grant of summary judgment to Booth and Worley on the plaintiff's outrageous conduct claim. In all other respects, the trial court's judgment is affirmed.

http://www.tba2.org/tba_files/TCA/2008/cawoodf_112508.pdf


WALLACE R. CORNETT, JR. v. ELIZABETH PAYNE BURTON

Court: TCA

Attorneys:

Larry L. Roberts, Nashville, Tennessee for the Appellant, Wallace R. Cornett, Jr.

Russ Heldman, Nashville, Tennessee for the Appellee, Elizabeth Payne Burton.

Judge: SWINEY

Wallace Cornett, Jr. ("Plaintiff") sued his ex-wife, Elizabeth Payne Burton ("Defendant"), for malicious prosecution. After all the proof had been presented, the Trial Court granted Defendant's motion for directed verdict finding and holding that "reasonable minds could not differ on the proposition that the element of lack of probable cause was not proved by the Plaintiff...." Plaintiff appeals to this Court. We vacate and remand this case to the Trial Court for a new trial.

http://www.tba2.org/tba_files/TCA/2008/cornettw_112508.pdf


IN RE ESTATE OF G. WALLACE CRESWELL

Court: TCA

Attorneys:

James S. Creswell, Harpers Ferry, West Virginia, appellant, Pro Se

W. Phillip Reed, Maryville, Tennessee, for the appellee, Oral Ruth Creswell

Judge: SUSANO

At an earlier time in this estate matter, the beneficiaries of the decedent's will announced in open court the terms of a settlement between them. Thereafter, one of the parties to the settlement, James Stewart Creswell ("Mr. Creswell"), sought to repudiate the settlement. The trial court refused to set the settlement aside, but granted an oral motion for an interlocutory appeal. We agreed to hear that appeal. We subsequently affirmed the judgment of the trial court. See In re Estate of Creswell v. James Stewart Creswell, 238 S.W.3d 263, 267 (Tenn. Ct. App. 2007). Mr. Creswell applied for permission to appeal to the Supreme Court but his application was denied. On remand, the trial court entered an order closing the estate. Mr. Creswell again appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/creswellg_112508.pdf


DAVIS ENTERPRISES, LLC v. REAGAN FARR, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TCA

Attorneys:

Dudley W. Taylor, Knoxville, Tennessee, for the appellant, Davis Enterprises, LLC

Robert E. Cooper, Jr., Attorney General and Reporter, and Brad H. Buchanan, Assistant Attorney General, Office of the Attorney General, Tax Division, Nashville, Tennessee, for the appellee, Reagan Farr, Commissioner of Revenue, State of Tennessee

Judge: SUSANO

The plaintiff, Davis Enterprises, LLC ("the LLC"), sued the Commissioner of Revenue of the State of Tennessee ("the Commissioner") challenging the Commissioner's sales and use tax assessment of $225,774.87 against the LLC. The trial court determined that an assessment was appropriate but only in the amount of $564. Following the trial court's judgment, the LLC sought an award of attorneys' fees and expenses under the authority of Tenn. Code Ann. section 67-1-1803(d) (Supp. 2007). The trial court held that the Commissioner was the prevailing party and, as a consequence of that ruling, denied the LLC's application. The LLC appeals. We reverse and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/davisenterprises_112508.pdf


EARNEST EDWIN GILCHRIST v. JUAN T. ARISTORENAS, M.D.

Court: TCA

Attorneys:

John Marshall Jones, Memphis, Tennessee, for the appellant Earnest Edwin Gilchrist

Craig P. Sanders and Timothy G. Wehner, Jackson, Tennessee, for the appellee Juan T. Aristorenas, M.D.

Judge: KIRBY

This appeal arises from a medical malpractice claim. The defendant physician performed an operation on the plaintiff patient. Complications occurred during the surgery; as a result, the patient required several more procedures and spent approximately three weeks in the hospital. The patient hired an attorney, who obtained an opinion letter from a physician expert, in which the expert opined that the defendant physician breached the standard of care during the patient's initial operation. After securing the expert opinion, the patient filed this lawsuit against the defendant physician for medical malpractice. After the case had been pending for several years, the attorney for the defendant physician took the deposition of the patient's expert. At the deposition, the patient's expert changed his opinion, and testified that he believed that the defendant physician's care of the patient was not below the standard of care. The next day, the defendant physician filed a motion for summary judgment. Several months later, the patient filed a motion under Tenn. R. Civ. P. 56.07 requesting a continuance of the summary judgment motion because he had been unable to engage another expert. The trial court denied the plaintiff's motion for a continuance and granted summary judgment in favor of the defendant physician. The patient appeals. On appeal, the plaintiff argues that the trial court erred in denying his request to continue the motion for summary judgment. We affirm, finding no abuse of discretion in the trial court's denial of the request for a continuance, and thus in the grant of summary judgment in the defendant's favor.

http://www.tba2.org/tba_files/TCA/2008/gilchriste_112508.pdf


IN RE G.T.B.

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Douglas Earl Dimond, Senior Counsel; Nashville, Tennessee; for the appellant, State of Tennessee, Department of Children's Services.

Debra L. Dishmon, Lebanon, Tennessee, for the appellee, B.N.B., mother of G.T.B.

David Kennedy, Lebanon, Tennessee, Guardian ad Litem for B.N.B.

Judge: BENNETT

The Department of Children's Services ("DCS") sought to terminate the parental rights of the mother of G.T.B. At the September 17, 2007 termination hearing, DCS chose not to call a witness from whom the mother and the court wanted to hear testimony. The court fined DCS and continued the hearing. When the hearing was held in November 2007, the mother's attorney moved for a dismissal before DCS called all its witnesses. The court granted the motion. DCS appeals, claiming it should not have been fined for failing to call a particular witness and it should have been allowed to have all its witnesses testify. We agree with DCS on both issues. The trial court is reversed.

http://www.tba2.org/tba_files/TCA/2008/gtb_112508.pdf


ICE STORES, INC. v. GREGORY REIER HOLMES

Court: TCA

Attorneys:

Bob C. Hooper, Brownsville, Tennessee, for the Defendant/Appellant Gregory Reier Holmes

Thomas F. Bloom, Nashville, Tennessee, for the Plaintiff/Appellee Ice Stores, Inc.

Judge: KIRBY

This appeal involves the enforcement of a foreign judgment. In 1997, the defendant pled nolo contendere to a criminal charge in a Texas court. As a part of his sentence, the defendant was ordered to pay restitution. The judgment of conviction listed the party to whom restitution should be paid. In 2005, the plaintiff corporation filed a lawsuit in Tennessee, seeking to enforce the Texas judgment. In his response, the defendant noted that the plaintiff corporation was not the party named in the Texas judgment to receive restitution from the defendant. The plaintiff filed a motion for summary judgment, asserting that the entity listed in the Texas judgment to receive restitution was the plaintiff's "doing business as" name, and that the plaintiff was in fact the proper party to enforce the Texas judgment. A hearing on the defendant's motion for summary judgment was held before expiration of the required thirty-day period after service of a motion for summary judgment. The trial court granted summary judgment in favor of the plaintiff corporation. The defendant now appeals. He argues that the trial court erred by holding the hearing on the plaintiff's summary judgment motion before expiration of the T.R.C.P. 56.04 thirty-day period. He also argues that the trial court erred in permitting the plaintiff corporation to domesticate and enforce the foreign judgment. We affirm, finding that the defendant was not prejudiced by being deprived of the T.R.C.P. 56.04 thirty-day period between service of the motion for summary judgment and the hearing, and that summary judgment in favor of the plaintiff corporation was otherwise proper.

http://www.tba2.org/tba_files/TCA/2008/icestores_112508.pdf


DORIS JONES and BILLY JONES v. LISA JUNE COX

Court: TCA

Attorneys:

Winston S. Evans, Nashville, TN, for Appellant

Jeffrey J. Switzer, Nashville, TN, for Appellant

William B. Ryan, Memphis, TN, for Appellee

Judge: STAFFORD

This is a Tenn. R. App. P. 9 appeal from the trial court's denial of Appellant/Defendant's motion to dismiss the Appellees/Plaintiffs' complaint for legal malpractice. Appellant, a licensed attorney, represented the Appellees in a lawsuit following an automobile accident. Appellant failed to effect service of process on the party-defendant to that suit. Appellees retained other counsel and filed a legal malpractice lawsuit against Appellant. Appellees' new counsel made a strategic decision to withhold service of process on Appellant pending the outcome of the underlying case. Appellant filed a motion to dismiss pursuant to Tenn. R. Civ. P. 4.01(3) for intentional delay of service of process. The trial court denied the motion to dismiss, and this appeal followed. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2008/jonesd_112508.pdf


LANDAIR SURVEYING CO. OF TENN., INC., ET AL. v. KENN DAVIS, ET AL.

Court: TCA

Attorneys:

Matthew J. Evans and John W. Elder, Knoxville, Tennessee, for the appellants, Landair Surveying Company of Tennessee, Inc., Robert D. Sanders, Jr., and Amy Sanders.

Barbara W. Clark, Knoxville, Tennessee, for the appellee, Kenn Davis, a.k.a. Kenn Davin.

Judge: LEE

The issues presented in this case involve the enforceability of an oral one-year contract and damages for loss of personal property. Upon careful review of the record and applicable law, we hold the following: 1) that the oral contract between the parties was not enforceable because it violated the statute of frauds, and 2) that the trial court did not err in failing to award the plaintiffs damages for their lost property where the sole testimony evidencing the value of such property was determined by the trial court to be "guesswork."

http://www.tba2.org/tba_files/TCA/2008/landair_112508.pdf


STATE OF TENNESSEE, DEPARTMENT OF CHILDRE'S SERVICES v. CEDRIC RENEE MIMS & ANGELA BROWN

Court: TCA

Attorneys:

André C. Wharton, Memphis, Tennessee, for the appellant Cedric Renee Mims

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the appellee State of Tennessee, Department of Children's Services.

Christina A. Zawisza and Jessica Erin Wood, Memphis, Tennessee, Guardian ad Litem

Judge: KIRBY

This appeal involves the termination of parental rights. The children were taken into protective custody soon after the birth of the youngest child, and were ultimately found to be dependent and neglected. The father was not appointed an attorney at this stage of the proceedings. Both the mother and father underwent psychological evaluations; both were found to be in the mild range of mental retardation and lacking the mental capacity to care for their children. DCS sought termination of their parental rights, alleging several grounds, including abandonment and mental incapacity. After a hearing, the lower court terminated the parental rights of both parents. The father appeals, arguing that DCS did not prove abandonment and mental incompetence by clear and convincing evidence. He also argues that the failure to appoint an attorney for him during the dependency and neglect proceedings was a denial of his right to due process. We affirm the trial court's finding on the ground of mental incompetence. We also find that any violation of Father's due process rights in relation to the dependency and neglect proceedings was remedied by procedural protections in place in the termination proceedings. Therefore, we affirm the termination of the father's parental rights.

http://www.tba2.org/tba_files/TCA/2008/mimsc_112508.pdf


TRESSA SUE PETTINATO v. ROD PETTINATO

Court: TCA

Attorneys:

Martin Sir, Nashville, Tennessee, attorney for the appellant, Rod Pettinato.

J. Yancy Belcher, Mt. Juliet, TeTressa Sue Pettinato.

Judge: DINKINS

Husband appeals the trial court's interpretation of a Marital Dissolution Agreement requiring him to continue making certain alimony payments following his involuntary loss of employment. Finding that all alimony payments to Wife cease upon Husband's involuntary termination, the judgment of the trial court is reversed.

http://www.tba2.org/tba_files/TCA/2008/pettinatot_112508.OPN.pdf


IN RE: T.M.G.

Court: TCA

Attorneys:

Joseph K. Byrd, Cleveland, Tennessee, for the Appellant, P.M.

Ginger Wilson Buchanan, Cleveland, Tennessee, for the Appellee, A.G.

Robert E. Cooper, Jr., Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Appellee, State of Tennessee.

Judge: SWINEY

A.G. ("Petitioner") is the great-grandmother of T.M.G. (the Child"), a nine year old girl. Petitioner obtained temporary custody of the Child in 2001. In 2006, Petitioner filed suit seeking to terminate the parental rights of the Child's biological father, P.M. ("Father"). Petitioner alleged that Father's parental rights should be terminated pursuant to Tenn. Code Ann. section 36-1-113(g)(6) because: (1) Father was confined by court order to a correctional facility for a period of ten or more years; and (2) the Child was under the age of eight at the time the sentence was imposed. Petitioner also alleged that termination of Father's parental rights was in the Child's best interest. Father opposed the petition, claiming Tenn. Code Ann. section 36-1-113(g)(6) was unconstitutional and that it was not in the Child's best interest to terminate his parental rights. Following a trial, the Trial Court found Tenn. Code Ann. section 36-1-113(g)(6) to be constitutional and thereafter terminated Father's parental rights. Father appeals claiming Tenn. Code Ann. section 36-1-113(g)(6) is unconstitutional, and that the Trial Court erred when it found that it had been proven by clear and convincing evidence that termination of Father's parental rights was in the Child's best interest. We affirm the judgment of the Trial Court on both issues.

http://www.tba2.org/tba_files/TCA/2008/tmg_112508.pdf


ALLEN P. BLYE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

C. Brad Sproles, Kingsport, Tennessee and Kenneth F. Irvine and Julie A. Rice, Knoxville, Tennessee (on appeal) and Terry L. Jordan, Blountville, Tennessee and Mark A. Toohey, Kingsport, Tennessee (at trial), for the appellant, Allen P. Blye.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; H. Greely Wells, Jr., District Attorney General; Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Allen P. Blye (hereinafter "the petitioner"), was originally convicted by a jury of aggravated burglary and aggravated rape. He now appeals from the Criminal Court for Sullivan County's denial of post-conviction relief. The petitioner's issues, as stated in his brief, are as follows: "(1) The Sullivan County Criminal Court erred by incorrectly applying the law to the facts of Appellant's Petition for Post-Conviction Relief, in regards to the issue of his guilty plea being entered into knowingly and intelligently; (2) The Sullivan County Criminal Court erred by denying the Appellant's Motion for permission to further Amend Post-Conviction Petition, in light of the United States Supreme Court's ruling in Gomez v. Tennessee, 127 S.Ct. 1209, (2007); (3) The Sullivan County Criminal Court erred in its refusal to grant Appellant's oral Motion to Recuse, due to an apparent preconception or bias by the Court, which was made on December 6, 2006 and December 11, 2006; (4) The Sullivan County Criminal Court erred by denying the Appellant's Petition for Post-Conviction Relief based upon the issue of ineffective assistance of counsel, in regards to the violations of the Appellant's rights under the Miranda decision; and (5) The trial court erred by denying his Petition for Post-Conviction Relief based on the ground that trial counsel failed to adequately protect the Appellant's interest at the sentencing phase of his original prosecution." After conducting an evidentiary hearing, the post-conviction court dismissed his petition. Following our review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/blyea_112508.pdf


STATE OF TENNESSEE v. ANTHONY PHILLIP GEANES

Court: TCCA

Attorneys:

Frank Deslauriers, Covington, Tennessee, for the appellant, Anthony Geanes.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A Hardeman County jury convicted the defendant, Anthony Phillip Geanes, of reckless endangerment with a deadly weapon, a Class E felony. The trial court sentenced the defendant as a multiple offender to three years imprisonment, consecutive to another sentence. In this appeal, the defendant raises the issue of whether the evidence was sufficient to support his conviction for reckless endangerment with a deadly weapon. Upon review of the evidence, we are constrained to hold that the evidence was insufficient to prove the defendant guilty of reckless endangerment with a deadly weapon. Therefore, we reverse the judgment of the trial court, vacate the conviction and dismiss the charge.

http://www.tba2.org/tba_files/TCCA/2008/geanesa_112508.pdf

WILLIAMS concurring
http://www.tba2.org/tba_files/TCCA/2008/geanesa_CON_112508.pdf

GLENN dissenting
http://www.tba2.org/tba_files/TCCA/2008/geanesa_DIS_112508.pdf


STATE OF TENNESSEE v. NINO JONES

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Nino Jones, a/k/a Sandy Ray Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Mary W. Francois, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Nino Jones, was convicted by a jury of one count of sale of cocaine, a Class C1 felony. In this direct appeal, he argues that the State failed to rebut his defense of entrapment beyond a reasonable doubt. We conclude that this argument lacks merit, and accordingly affirm.

http://www.tba2.org/tba_files/TCCA/2008/jonesn_112508.pdf


STATE OF TENNESSEE v. REX WILMORE

Court: TCCA

Attorneys:

Edward T. Farmer, Springfield, Tennessee, for the appellant, Rex Wilmore.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; John W. Carney, Jr., and Robert S. Wilson, Deputy District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

In a bench trial, the Defendant-Appellant, Rex Wilmore (hereinafter "Wilmore"), was convicted of cruelty to animals and vandalism over $500 and was subsequently sentenced to one year on probation and ordered to pay restitution. On appeal, Wilmore argues that his waiver of the right to a jury trial was invalid because he waived the right unknowingly. Following our review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/wilmorer_112508.pdf


Tenn. Code Ann. section 12-3-219 - Reverse Auctions

TN Attorney General Opinions

Date: 2008-11-25

Opinion Number: 08-178

http://www.tba2.org/tba_files/AG/2008/ag_08_178.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
Daughtrey to take senior status, sources say
The first woman on the U.S. Court of Appeals for the 6th Circuit -- Martha Craig Daughtrey -- will take senior judge status at the first of the year, NashvillePost.com reports today. With this move, President-elect Barack Obama will appoint a replacement. She was nominated to the court by then-President Bill Clinton, confirmed by the Senate and began serving in 1993.
Read more [subscription required]
Documents will stay sealed in nursing home fire case
A judge's decision to seal documents in connection with a deadly Nashville nursing home fire was upheld by the Tennessee Court of Appeals in a ruling handed down Friday. The Court of Appeals found that the trial court was not wrong in pre-emptively sealing records without justification, subject to a later determination as to whether the documents should remain under seal. The Tennessee Bar Association had filed an amicus brief in the case, noting that the appellant was in essence asking the court to adopt proposed Rule 1A of the Tennessee Rules of Civil Procedure, bypassing "a well established procedure for adoption of rules for practice in all courts."
The Tennessean has more
Self-representation on the rise
The number of people serving as their own lawyers is on the rise across the country, and the cases are no longer limited to uncontested divorces and small claims. Even people embroiled in child custody cases, potentially devastating lawsuits and bankruptcies are representing themselves, legal experts say. "It's not just that poor people can't afford lawyers. This is really a middle-class phenomenon," said Sue Talia, a judge from Danville, Calif. "Courts are absolutely inundated with people who do not understand the procedures."
The Tennessean has the story
Opinion on ADA amendment: 'it's about time'
University of Tennessee Law Professor Alex Long wrote an opinion piece for the Knoxville News Sentinel earlier this week. His guest column, "Amending the ADA law: it's about time"
can be read here
Jurors: It's not OK to poll Facebrook friends
A British court official says a juror was dismissed from a sex abuse trial after discussing the case on Facebook, the Associated Press reports. Court administrator Peter Carr says the female juror posted details of the case on the social networking site and asked her online friends whether they thought the defendants were guilty. That violated rules banning British jurors from talking about cases outside court. Carr says she was removed from the trial at Burnley Crown Court in northwest England on Nov. 18 after her online indiscretions came to light. The case continued with a jury of 11 people.

Legislative News
Kyle, Herron, Jackson and Berke elected to Democratic leadership
Members of the Senate Democratic Caucus have elected Jim Kyle of Memphis to be their minority leader. Sen. Roy Herron of Dresden was elected caucus chairman, Sen. Doug Jackson of Dickson was re-elected as vice chairman, and Sen. Andy Berke of Chattanooga was chosen to fill the positions of secretary and treasurer. Republicans hold a 19-14 majority in the Senate. The Jackson Sun reported this AP news.

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TBA, Bank of America team up for no-fee credit card
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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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