Jackson is new circuit judge in Coffee County

Gov. Phil Bredesen today appointed Vanessa Agee Jackson of Tullahoma to the Tennessee Circuit Court for the 14th Judicial District, serving Coffee County. Jackson will fill a vacancy created by the death of Judge John W. Rollins in January. Prior to her appointment, the 1978 University of Tennessee College of Law graduate was in private practice at the Tullahoma law firm Hull, Ray, Rieder, Ewell, Lane & Ridner PA.

Learn more about Jackson's appointment from the AOC

TODAY'S OPINIONS
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STEPHANIE BRYANT, ET AL. v. ESTATE OF HENRY H. KLEIN

Court: TCA

Attorneys:

David S. Zinn, Brentwood, Tennessee, for the appellant, Estate of Henry H. Klein.

J. Brent Nolan and Zachary S. Burroughs, Knoxville, Tennessee, for the appellees, Stephanie M. Bryant and Jonathan Bryant.

Judge: DINKINS

Personal injury plaintiffs filed suit against defendant motorist, who died prior to the filing of the suit, for injuries sustained in an automobile accident. By special appearance, the deceased tortfeasor's estate filed a motion to dismiss on the grounds that plaintiffs had not properly instituted the action against the decedent in accordance with Tenn. Code Ann. section 20-5-103 prior to the expiration of the statute of limitations. The trial court denied the motion, but granted the estate a direct appeal to this Court. Finding error in the judgment below, we reverse and remand the case.

http://www.tba2.org/tba_files/TCA/2009/bryants_042109.pdf


ELIZABETH ALICE CHAMPLIN v. METROPOLITAN GOVERNMENT OF NASHVILLE, DAVIDSON COUNTY, TENNESSEE, ET AL.

Court: TCA

Attorneys:

Stephan D. Karr, Nashville, Tennessee, for the appellant, Elizabeth Alice Champlin.

Sue B. Cain, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County, Tennessee

Judge: DINKINS

Cyclist who was injured when she fell after hitting a rise in a sidewalk appeals grant of summary judgment to the Metropolitan Government of Nashville and Davidson County ("Metro") in proceeding under the Tennessee Governmental Tort Liability Act. In opposition to Metro's motion for summary judgment, cyclist filed a sidewalk inventory that had been prepared as part of Metro's effort to determine if all sidewalks in the county complied with the Americans with Disabilities Act to show that Metro had notice of the defective condition of the sidewalk. Trial court held that the inventory did not constitute notice of defective, unsafe or dangerous condition to Metro. Finding the holding of the trial court to be correct, we affirm.

http://www.tba2.org/tba_files/TCA/2009/champline_042109.pdf


DANIEL E. GREMILLION, M.D. v. NASHVILLE GASTROINTESTINAL SPECIALISTS, INC.

Court: TCA

Attorneys:

Tim K. Garrett, Justin A. Page, Nashville, TN, for Appellant

Douglas S. Johnston, Jr., Nashville, TN, for Appellee

Judge: HIGHERS

This appeal involves a dispute over the interpretation of a buy-out provision. One of the four physicians in a medical practice retired and requested a repurchase of his stock. The physicians had previously adopted a formula for the valuation of stock in such situations, but when it came time to apply the agreement, they could not agree as to the meaning of several phrases within the agreement. The trial court heard testimony regarding the parties' intentions as to the agreement and testimony from two accountants regarding their interpretations of the agreement. After interpreting the various phrases of the agreement, the trial court valued the physician's stock and awarded prejudgment interest at the rate of ten percent since the date of the physician's retirement. We reverse the trial court's ruling as to the meaning of the agreement and affirm the trial court's judgment as modified.

http://www.tba2.org/tba_files/TCA/2009/gremilliond_042109.pdf


JOSE HOLMES v. TENNESSEE DEPARTMENT OF CORRECTIONS

Court: TCA

Attorneys:

Jose Holmes, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General, Michael Moore, Solicitor General, and Pamela S. Lorch, Senior Counsel, Nashville, Tennessee, for appellee.

Judge: FRANKS

Plaintiff filed a Petition for a common law writ of certiorari in the Trial Court, charging that the State's Disciplinary Board acted arbitrarily when it failed to follow the requirements of its Uniform Disciplinary Procedures at a hearing wherein plaintiff was charged with conspiracy to violate State law. The Trial Court found the writ to be without merit and on appeal we affirm the Trial Court's Judgment.

http://www.tba2.org/tba_files/TCA/2009/holmesj_042109.pdf


RUTH ISAACS v. SUSAN COMPTON

Court: TCA

Attorneys:

Thomas R. Banks, Elizabethton, Tennessee for the Appellant, Susan Compton.

Randall E. Sermons, Johnson City, Tennessee for the Appellee, Ruth Isaacs.

Judge: SWINEY

Ruth Isaacs ("Plaintiff") sued Susan Compton ("Defendant") for breach of contract. The case was tried before a jury, and the Trial Court entered a Final Judgment on the jury's verdict that Defendant had breached the contract and owed Plaintiff $368,613.71. Defendant filed a motion for judgment notwithstanding the verdict, remittitur, or, in the alternative new trial. The Trial Court granted remittitur reducing the judgment to $300,000.00, and denied the remaining motions. Defendant appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2009/isaacsr_042109.pdf


DANIEL SANDERS v. HENRY COUNTY, TENNESSEE

Court: TCA

Attorneys:

James L. Harris, Nashville, TN, for Appellant

Brandon O. Gibson, Jackson, TN, for Appellee

Judge: HIGHERS

This appeal involves a statutory retaliatory discharge claim pursuant to Tennessee Code Annotated section 50-1-304. The trial court granted summary judgment to the employer, finding that the employee failed to establish that he had refused to participate in or remain silent about "illegal activities," within the meaning of the statute. The employee appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/sandersd_042109.pdf


ROBERT P. WALZ v. PHIL MITCHELL

Court: TCA

Attorneys:

Phil Mitchell, pro se Appellant.

Greg Leffew, Rockwood, Tennessee, for the Appellee, Robert P. Walz.

Judge: SWINEY

In August 2002, Robert P. Walz ("Plaintiff") obtained a judgment for $5,097.50 against Phil Mitchell ("Defendant") in Monroe County, Florida. In August of 2007, Plaintiff filed a complaint in the Roane County Chancery Court seeking to enforce the Florida judgment. Defendant, proceeding pro se, responded to the complaint and filed a counterclaim for defamation and damage to business reputation. Plaintiff filed a motion to dismiss the counterclaim on the basis that the Trial Court lacked subject matter jurisdiction. The Trial Court agreed and granted Plaintiff's motion. Nine days before trial, Defendant filed a motion for a continuance claiming he needed additional time to conduct discovery. The Trial Court denied the motion for continuance and, following a trial, entered an order enforcing the Florida Judgment. Defendant appeals, and we affirm.

http://www.tba2.org/tba_files/TCA/2009/walzr_042109.pdf


STATE OF TENNESSEE v. RICK ALLEN BOWGER a/k/a RICK ALLEN BOWSER

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant Public Defender, for the appellant, Rick Allen Bowger, a/k/a Rick Allen Bowser.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kaylin Render Hortenstine, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Rick Allen Bowger, also known as Rick Allen Bowser, appeals from the order of the Sullivan County Criminal Court denying alternative sentencing on his guilty-pleaded conviction of domestic assault, a Class A misdemeanor. See T.C.A. section 39-13-111 (2006). We affirm the denial of alternative sentencing.

http://www.tba2.org/tba_files/TCCA/2009/bowgerr_042109.pdf


SOLON ATWELL BROWN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Solon Atwell Brown, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Solon Atwell Brown, appeals the Shelby County Criminal Court's summary dismissal of his petition for post-conviction relief as time-barred. The State has filed a motion requesting that this court affirm the post-conviction court's dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to establish that the petition was timely filed or that a recognized exception to the rule applies, we grant the State's motion and affirm the judgment from the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/browns_042109.pdf


STATE OF TENNESSEE v. JOSEPH C. EDENFIELD

Court: TCCA

Attorneys:

Kenneth R. McKnight, Murfreesboro, Tennessee for the appellant, Joseph C. Edenfield.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and David L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Joseph C. Edenfield, appeals the dismissal of his motion requesting that the court modify his sentence of imprisonment and grant him a suspended sentence. On appeal, the defendant argues that the trial court erred in its finding that it lacked jurisdiction over the defendant's sentence because of his transfer to the Department of Correction. Thus, the issue before us is whether a trial court loses jurisdiction to modify a defendant's sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure if the defendant is in the physical custody of the Department of Correction. Upon review of the record and the applicable relevant law, we conclude that the trial court does retain jurisdiction to modify a sentence pursuant to Rule 35, regardless of where the defendant is housed, if the request for modification is made within 120 days after the date the sentence is imposed or probation is revoked. As such, we reverse the trial court's dismissal of the defendant's motion for modification and remand for a determination as to whether or not modification of the sentence is proper.

http://www.tba2.org/tba_files/TCCA/2009/edenfieldj_042109.pdf


STATE OF TENNESSEE v. FAITH RENEA IRWIN GIBSON

Court: TCCA

Attorneys:

Whitney P. Taylor, Kingsport, Tennessee, for the appellant, Faith Renea Irwin Gibson.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Jr., Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Faith Renea Irwin Gibson, appeals the trial court's denial of her request for judicial diversion. After a thorough review of the record, we reverse the judgment of the trial court and remand for further consideration.

http://www.tba2.org/tba_files/TCCA/2009/gibsonf_042109.pdf


OLIVER J. HIGGINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Oliver J. Higgins, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Oliver J. Higgins, appeals the trial court's denial of his petition for post- conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the State's motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2009/higginso_042109.pdf


STATE OF TENNESSEE v. JESSICA MYRICK

Court: TCCA

Attorneys:

David L. Stewart, Winchester, Tennessee, for the appellant, Jessica Myrick.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Jessica Myrick, entered a plea of guilty to possession of cocaine, a Class C felony and was sentenced as a Range I, standard offender, to three years suspended after service of ninety days in confinement. The plea agreement purported to reserve a certified question of law under Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure which challenged the trial court's denial of her motion to suppress. After a thorough review, we conclude that Defendant has failed to comply with the strict requirements of Rule 37(b)(2)(A) and dismiss this appeal.

http://www.tba2.org/tba_files/TCCA/2009/myrickj_042109.pdf


EDWARD P. PORTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Edward P. Porter, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Pamela S. Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Edward P. Porter, appeals the Davidson County Criminal Court's summary dismissal of his petition for writ of error coram nobis. The petitioner pled guilty in 1998 to possession with intent to sell over .5 grams of cocaine, a Class B felony, and was sentenced to eight years in the Department of Correction. In 2007, the petitioner filed the instant petition, alleging that he was being restrained by an illegal sentence. The trial court summarily dismissed the petition because it was filed outside the statute of limitations and because it failed to state a cognizable claim. On appeal, the petitioner contends that the court erred in determining that the petition was time-barred, asserting that the one-year statute of limitations is not applicable and that his assertion of an illegal sentence in violation of Tennessee Rule of Criminal Procedure 32 establishes a cognizable claim for relief. Following review of the record, we find no error and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/portere_042109.pdf


HOMER T. RIVERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; and Periann Houghton, Assistant District Public Defender, for the appellant, Homer T. Rivers.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe L. VanDyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Homer T. Rivers, appeals from the Hardeman County Circuit Court's denial of his petition for post-conviction relief from his guilty plea convictions on one count of delivery of a schedule II controlled substance (cocaine), a Class B felony, and one count of simple possession of a Schedule VI controlled substance (marijuana), a Class A misdemeanor. On appeal, the petitioner argues that he received the ineffective assistance of counsel and that counsel's ineffective assistance rendered his guilty pleas unknowing and involuntary. After reviewing the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/riversh_042109.pdf


STATE OF TENNESSEE v. JEFFREY SCOTT

Court: TCCA

Attorneys:

Bruce Kelley, Jr., Memphis, Tennessee, for the appellant, Jeffrey Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience Branham and Corliss Shaw, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Jeffrey Scott, was convicted by a Shelby County jury of two counts of aggravated robbery, a Class B felony; conspiracy to commit aggravated robbery, a Class C felony; and conspiracy to commit robbery and attempted robbery, both Class D felonies. He was sentenced by the trial court to concurrent terms of ten years for the aggravated robbery convictions, three years for the conspiracy to commit aggravated robbery conviction, and two years each for the conspiracy to commit robbery and attempted robbery convictions. In a timely appeal to this court, the defendant challenges the sufficiency of the convicting evidence and argues that the trial court erred in denying his motion to suppress his statement to police and in limiting defense counsel's cross-examination of a witness. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/scottj_042109.pdf


STATE OF TENNESSEE v. RICHARD F. STROUD

Court: TCCA

Attorneys:

Mark M. Mizell, Franklin, Tennessee, for the Appellant, Richard F. Stroud.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Kim Helper, District Attorney General; Josh D. Marcum, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Richard F. Stroud, was indicted on one count of driving under the influence, first offense, a Class A misdemeanor. After a motion to suppress was heard and denied, the Defendant entered a guilty plea. In the negotiated plea agreement, the parties purported to reserve a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). After review, we conclude that the Defendant has failed to comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2). The appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2009/stroudr_042109.pdf


FRANK LEE TATE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Frank Lee Tate, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Terry D. Dycus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Frank Lee Tate, appeals the Circuit Court for Fayette County's dismissal of his pro se petition for post-conviction relief from his convictions for aggravated rape, a Class A felony, and incest, a Class C felony. He received concurrent sentences of sixty years for aggravated rape and fifteen years for incest. The trial court dismissed his petition without appointing counsel and without holding a hearing. On appeal, the petitioner lists over thirty claims. We affirm the dismissal of the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/tatef_042109.pdf


STATE OF TENNESSEE v. MULLANDRIC WEBB

Court: TCCA

Attorneys:

Paul J. Springer, Memphis, Tennessee, for the appellant, Mullandric Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lora Fowler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Mullandric Webb, was convicted by a Shelby County jury of two counts of robbery, Class C felonies, two counts of aggravated robbery, Class B felonies, and one count of intentionally evading arrest, a Class D felony. After merger of the robbery and aggravated robbery convictions, the defendant was sentenced as a Range I offender to twelve years to be served in the Tennessee Department of Correction concurrently with a four year sentence for intentionally evading arrest. On appeal, the defendant raises the following issues: (1) whether the trial court erred in denying the defendant's motion to suppress his statement; (2) whether the evidence was sufficient to sustain his convictions; and (3) whether the trial court imposed an excessive sentence. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/webbm_042109.pdf


TODAY'S NEWS

Legislative News
Legal News
Passages
TBA Convention 2009
TBA Member Services

Legislative News
Bill to cap nursing home punitive damages likely dead
Today the House civil practice and procedures subcommittee deadlocked on a 3-3 vote on a motion to recommend a measure to place caps on punitive damage awards in liability lawsuits filed by nursing home patients or their families. Under legislative rules, the tie vote means the bill is technically alive. But practically speaking it is likely dead for the year, its sponsor, Rep. Jon Lundberg, R-Bristol, agreed after the vote.
The Commercial Appeal reports
Opinions vary on Exclusionary Rule Reform Act
Saying it is an unfair burden on "jurors to expect them to routinely decide whether evidence was obtained properly," the Tennessean says in an editorial today that the Exclusionary Rule Reform Act should not be passed. Proposals such as this, sponsored by Rep. Eric Watson, R-Cleveland, and Sen. Randy McNally, R-Oak Ridge, "attempt to oversimplify the legal process, painting innocence and guilt in broad strokes," the paper says. The bills are scheduled to be discussed in judiciary committees on the Hill Wednesday.

Sponsor McNally defends the position of the bill in this opinion piece, while Penny White asks "what justifies modifying Tennessee's longstanding protection of her citizens from potential government abuse?"

Are days numbered for Ethics Commission?
The Tennessee Ethics Commission, the state organization that regulates lobbying and investigates corruption allegations, could be merged with another state agency under a bill that may come up for consideration in the state Senate soon.
Follow the story in the Tennessean
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Legal News
'Trial lawyer' battle taken outside courtroom
One lawyer in Memphis won't join the American Trial Lawyers Association because another lawyer is already in it. Tim Holton has declined membership because he says Corey B. Trotz, who is a member, is not really a "trial lawyer" and therefore should not be included in the association. The association's president, John Romano, said he hates to see lawyers tussle outside the courtroom. "I've seen this kind of stuff forever in these kinds of organizations," said Romano, who practices law in West Palm Beach, Fla. "I think it's childish when people begin to fuss at each other over things like that."
The Commercial Appeal reports
He just can't stay away from Obion Drug Court
Drug courts can be life-saving for some, but the wash-out rate is about 35 percent. The 65 percent who persist and complete the program can live drug- and alcohol-free lives, no longer committing crimes to support their destructive habits. Read one man's journey -- not one of success so far -- through Tennessee's 27th Judicial District Drug Court program in Obion County.
The Messenger has the story
3 confirmed to Justice Department posts
Lanny Breuer was confirmed by the Senate on Monday as chief of the Justice Department's criminal division, Tony West was confirmed to lead the department's civil division, and Christine Varney to head the antitrust division. Breuer was Roger Clemens' lawyer in a steroid investigation and President Bill Clinton's impeachment attorney. West was a lawyer for "American Taliban" John Walker Lindh. Varney has led the Hogan & Hartson law firm's Internet practice group and was a commissioner of the Federal Trade Commission during the Clinton administration, specializing in Internet issues.
Read the AP story from NewsChannel 9
Passages
'Chuck' Cheek dies
Houston lawyer and TBA member Charles Edward "Chuck" Cheek died April 17. He was 58. A graduate of the University of Tennessee College of Law, he received his degree and was licensed in 1975. Visitation is April 22 from 6 to 8 p.m. at the Airsman-Hires Funeral Home, U.S. 36 West, Pittsfield, Ill. Services will be April 23 at 11 a.m. at the funeral home. Memorials may be made to the Pittsfield First Christian Church, Pike County Mounted Angles or to Great Strides c/o Airsman-Hires Funeral Home.
Find out more
TBA Convention 2009
Baker, Ford to provide insight on key topics
What does America need to do to get back on track? It's a question asked during the presidential campaign, and one that has become even more compelling as the country struggles with economic recession. You can hear former Senator Howard Baker and former Congressman Harold Ford Jr. bring their experience and insight to the topic during this year's TBA Annual Convention in Memphis, June 18-20. This program is just part of a well-rounded slate of educational programming and entertaining events you'll be able to take part in when you register for the TBA Convention.
Find out more about this year's programming or register today
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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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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