Vanderbilt Law School names new dean

Vanderbilt University Law School has named Chris Guthrie, a seven-year veteran of the school and the former associate dean for academic affairs, as new dean of the law school effective July 1. Guthrie has agreed to a five-year appointment, subject to approval by the Vanderbilt Board of Trust. He replaces Edward L. Rubin, who will continue as a faculty member at the school. According to a press release from the school, Guthrie, 42, is an expert on dispute resolution, negotiation, judicial decision-making and behavioral law and economics. He earned a masters degree in education from the Harvard Graduate School of Education and a law degree from Stanford Law School. Prior to joining Vanderbilt's faculty, he practiced law with Fenwick & West in Palo Alto, Calif., served on the faculty of the University of Missouri Law School, and taught as a visiting professor at Northwestern University Law School and the Washington University School of Law.

Read more from the school

TODAY'S OPINIONS
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ARTHUR CREECH ET AL. v. ROBERT R. ADDINGTON ET AL.
CORRECTION


Court: TSC

Attorneys:

Rick L. Powers and Dan D. Rhea, Knoxville, Tennessee, for the appellants, D.C. Parker and Richard Flowers.

David H. Parton, Gatlinburg, Tennessee for the appellees, Arthur Creech et al.

Judge: WADE

The eleven Plaintiffs, investors in a real estate development in Tunica, Mississippi, suffered losses when the financing for hotels on the tracts of land they had leased failed to materialize. Five of the Plaintiffs first learned of the investment opportunity in 1993 while attending a presentation by real estate agents Lloyd and Betty Link in Gatlinburg. After suit was filed against several Defendants based upon breach of oral and written contracts, the trial court entered an order of dismissal as to the Links and other of the Defendants and, later, granted a motion for summary judgment in favor of D.C. Parker and Richard Flowers, the owners of the land. When judgments had been entered as to all of the Defendants, the Plaintiffs appealed, but only as to Parker and Flowers. The Court of Appeals reversed, holding that whether an agency relationship existed between Parker and Flowers, as principals, and the Links, and whether the Links had been guilty of misrepresentation were disputed questions of fact. Upon remand, a jury found that the Links were the agents of Parker and Flowers, who were vicariously liable for fraudulent misrepresentations made by the Links. Damages were awarded to the Plaintiffs. In a second appeal, this time by Parker and Flowers, the Court of Appeals affirmed as to those five Plaintiffs who had attended the presentation in Gatlinburg, but remanded for a new trial as to those who did not. We granted an application for permission to appeal to consider whether the order of dismissal in favor of the agents precluded any adjudication of vicarious liability as to the principals. We find that the order of dismissal in regard to the Links has become final, was on the merits, and involves the same cause of action as the pending fraudulent misrepresentation claims. The doctrine of res judicata applies. Because the Plaintiffs' right of action against the agents has been extinguished by operation of law, the Plaintiffs are not entitled to a judgment against Parker and Flowers based solely upon the fraudulent misrepresentations by the Links as agents. Moreover, the Plaintiffs did not properly preserve for appeal their claims of direct liability against Parker and Flowers. The judgment of the Court of Appeals is, therefore, reversed, the jury's verdict assigning vicarious liability to Parker and Flowers is vacated, and the case is dismissed.

http://www.tba2.org/tba_files/TSC/2009/creecha_corr_052709.pdf


CAROL ANN VICK WATSON v. FRANK LEE WATSON, JR.

Court: TSC

Attorneys:

David E. Caywood and Holly Jackson Renken, Memphis, Tennessee, for the Plaintiff/Appellant Carol Ann Vick Watson.

Sam Berry Blair and Betty Campbell, Memphis, Tennessee, for the Defendant/Appellee Frank Lee Watson, Jr.

Judge: KIRBY

This is the second appeal in this divorce case. The husband is a lawyer and the wife was a homemaker during most of the marriage. After the divorce trial, the trial court divided the marital estate, awarded the wife transitional alimony, and ordered each party to pay his or her own attorney's fees. The wife appealed and the husband cross-appealed. In the first appeal, the appellate court reversed the trial court's valuation of two marital assets, stock and a corporation, and remanded for the trial court to re-value those assets. In addition, the trial court's decision regarding the husband's alleged dissipation of marital assets was reversed, and that issue was remanded to the trial court for reconsideration as well. The issues raised on alimony and attorney's fees were not addressed in the first appeal. On remand, the trial court found a debt owed by the corporation to the husband was uncollectible and determined that the value of the corporation was zero. The trial court adjusted the valuation of the wife's interest in the stock and engaged in a detailed analysis of the husband's alleged dissipation of marital assets, finding no dissipation. On remand, the wife sought an award of alimony in futuro. The trial court declined to award alimony in futuro but awarded the wife an additional year of transitional alimony. Finally, the trial court declined the wife's request for her attorney's fees. Both parties now appeal. We affirm the trial court's finding that the husband did not engage in dissipation, affirm the trial court's increased property award to the wife, reflecting her interest in the stock, reverse the trial court's finding that the value of the corporation is zero, and remand to the trial court for valuation of the corporation and division of that asset, modify the trial court's award of alimony by awarding the wife alimony in futuro when the transitional alimony ends, affirm the trial court's refusal to award the wife her attorney's fees, and order the award of postjudgment interest on the wife's increased property award from the stock, dating from the date of the judgment on remand.

http://www.tba2.org/tba_files/TSC/2009/watsonc_052709.pdf


KENNETH CONAWAY v. U.S. PIPE AND FOUNDRY COMPANY ET AL.

Court: TWCA

Attorneys:

David C. Nagle, Chattanooga, Tennessee, for the appellant, U.S. Pipe and Foundry Company.

Thomas L. Wyatt, Chattanooga, Tennessee, for the appellee, Kenneth Conaway.

Judge: KOCH

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. After sustaining a workrelated injury to his back, the employee filed a complaint seeking workers' compensation benefits in the Chancery Court for Marion County. Following a bench trial, the trial court found the employee to be totally and permanently disabled. The employer appealed, contending that the employee's continuing employment as a pastor precluded a finding of total and permanent disability. An Appeals Panel reversed the trial court's conclusion that the employee was totally and permanently disabled and modified the award to seventy-two percent (72%) permanent partial disability to the body as a whole. Conaway v. U.S. Pipe & Foundry Co., No. M2006-01177-WCR3- WC, 2007 WL 2141537 (Tenn. Workers' Comp. Panel July 26, 2007). The employee, who had resigned as a pastor before the Appeals Panel decision was issued, filed a motion for modification pursuant to Tenn. Code Ann. section 50-6-231(2) (2008). Following a second evidentiary hearing, the trial court again found that the employee is permanently and totally disabled. The employer appeals contending that the employee failed to present sufficient proof that he sustained an increase of incapacity solely as a result of his work-related injury. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2009/conawayk_052709.pdf


IN RE: ESTATE OF NANCY BLANCHE HUFF ARTHUR, DECEASED

Court: TCA

Attorneys:

George W. Morton, Jr., and J. Myers Morton, Knoxville, Tennessee for the Appellant, Douglas A. Arthur.

David H. Parton, Esq., Gatlinburg, Tennessee, Pro se Appellee.

Judge: SWINEY

Douglas A. Arthur filed the Last Will and Testament of Nancy Blanche Huff Arthur, Deceased for probate and was appointed Executor of the Estate of Nancy Blanche Huff Arthur ("the Estate"). Douglas A. Arthur then hired attorney David H. Parton ("Attorney Parton") for legal services in connection with the Estate. Attorney Parton later was granted leave to withdraw, and Douglas A. Arthur hired another attorney. Attorney Parton filed several motions asking for his fees. In August of 2008, the Probate Court entered an order finding and holding, inter alia, that $2,500 of Attorney Parton's fees were chargeable against the Estate as an administrative expense, that Douglas A. Arthur was liable personally for the remainder of Attorney Parton's fees, and "that David H. Parton, Attorney is justly entitled to an attorney's lien against Doug Arthur's share of the Estate of Nancy Blanche Arthur to secure payment of the fees and expenses charged against Doug Arthur personally." Douglas A. Arthur appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2009/arthurn_052709.pdf


EDWIN GRAYBEAL, JR., SHERIFF, WASHINGTON COUNTY, ET AL. v. TENNESSEE DEPARTMENT OF HUMAN SERVICES

Court: TCA

Attorneys:

John Rambo, Jonesborough, Tennessee, for the appellants, Edwin Graybeal, Jr., Sheriff, Washingto County, et al.

Robert E. Cooper, Jr., Attorney General and Reporter; Pamela A. Hayden-Wood, Senior Counsel, for the appellee, Tennessee Department of Human Services.

Judge: COTTRELL

Local officials appealed to the Chancery Court the decision by the Secretary of State that the Department of Human Services has a statutory priority under Tenn. Code Ann. section 71-4-501 et seq. to operate the inmate commissary at the local detention facility with blind vendors. We affirm the Chancery Court's finding that the inmate commissary is subject to the statutory priority.

http://www.tba2.org/tba_files/TCA/2009/graybeale_052709.pdf


WILLIAM GRIFFIN, JR. v. TERRANCE BORUM, ET AL.

Court: TCA

Attorneys:

William Griffin, Jr., pro se, Appellant.

Thomas L. Parker, Ormonde B. DeAllaume, Memphis, TN, for the Appellee, Kentucky National Insurance Company

Judge: STARRORD

Appellant William Griffin, Jr. appeals the trial court's denial of his Tenn. R. Civ. P. 59.04 motion to vacate or amend its order dismissing Mr. Griffin's case against the Appellee Kentucky National Insurance Co. for bad faith denial of an insurance claim. We affirm.

http://www.tba2.org/tba_files/TCA/2009/griffinw_052709.pdf


GARY HARRIS v. ALCOA, INC., ET AL.

Court: TCA

Attorneys:

P. Alexander Vogel, Knoxville, Tennessee, for the appellant, Gary Harris.

James E. Wagner and Richard T. Scrugham, Jr., Knoxville, Tennessee, for the appellee, Alcoa, Inc. Richard L. Hollow, Knoxville, Tennessee, for the appellee, Hanger Prosthetic & Orthotics, Inc.

Judge: SUSANO

The plaintiff, Gary Harris, was injured in a work-related accident. As a result of the accident, his right arm was amputated below the elbow. His employer, the defendant Alcoa, Inc., paid workers' compensation benefits to and for the plaintiff, including a payment of $33,776.83 to the co-defendant, Hanger Prosthetics & Orthotics, Inc., for a prosthetic arm known as a "myoelectric arm." Following a jury trial in federal court, the plaintiff entered into a confidential settlement of his claim against a third party which arose out of the accident. Thereafter, he filed a complaint, as amended, against the two defendants, averring that, out of the settlement proceeds, he had escrowed with his attorney the sum of $33,776.83. He claims that he did not receive the prosthetic arm for which Alcoa paid. He seeks a declaratory judgment that the escrowed funds rightfully belong to him and not his employer. Alcoa filed a motion for judgment on the pleadings. The trial court granted the motion. The plaintiff appeals. We vacate the trial court's judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/harrisg_052709.pdf


STATE OF TENNESSEE EX REL. BEE DESELM, ET AL. v. JOHN W. OWINGS, ET AL.

Court: TCA

Attorneys:

Herbert S. Moncier, Knoxville, Tennessee, for the appellants, Bee DeSelm, Alfred Akerman, Margo Akerman, Donna J. G. Brian, Mike Whalen, Jerry Bone, James Gray, Robert Cunningham, Millie Cunningham and Carl Seider.

Robert H. Watson, Jr., Knoxville, Tennessee, for the appellees, John E. Owings and Knox County, Tennessee.

Judge: SUSANO

The plaintiffs, ten citizens of Knox County, filed suit against John W. Owings, the Knox County Law Director, and Knox County, seeking, among other things, declaratory judgment and a writ of mandamus, pertaining to the plaintiffs' request that the officers of Knox County who were newly elected in the August 7, 2008, general election, be sworn in immediately following the certification of the election results by the Knox County Election Commission, rather than waiting until September 1. The defendants filed a motion to dismiss, which the trial court granted, based, in part, on a lack of standing. The plaintiffs appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2009/owingsj_052709.pdf


RICK PETERS, ET AL. v. RAY LAMB, M.D., ET AL.

Court: TCA

Attorneys:

Bob McD. Green, Johnson City, Tennessee, for the appellants, Rick Peters and Rob Watts.

Charles T. Herndon IV and Elizabeth M. Hutton, Johnson City, Tennessee, for the appellees, Ray Lamb, M.D., and McLeod Cancer and Blood Center of East Tennessee.

Judge: SUSANO

This is a medical malpractice action by Rick Peters and Rob Watts ("Plaintiffs"), the surviving spouse and child respectively of Elizabeth Peters, deceased, filed against Dr. Ray Lamb and his practice group, McLeod Cancer and Blood Center of East Tennessee (collectively "Defendants"). Mrs. Peters unexpectedly died shortly after Defendants began treating her for her recently-diagnosed anal cancer. Pre-trial, Plaintiffs lodged a proposed motion and order of nonsuit by placing it in the trial judge's "in-box." By the time the judge discovered the document, a motion for summary judgment had been filed by Defendants and was pending. The trial court did not sign the order of nonsuit. Following a summary judgment hearing seven months later, the trial court entered an order denying the motion for nonsuit and granting Defendants summary judgment. Plaintiffs appeal. The sole question Plaintiffs raise is whether the trial court erred in ruling that the lodging of the motion and order for nonsuit was ineffectual to dismiss their action without prejudice. Defendants claim this appeal is frivolous and seek an award of damages pursuant to the provisions of Tenn. Code Ann. section 27-1-122 (2000). We conclude that the appeal is frivolous because the issue Plaintiffs raised had no reasonable chance of success. We affirm the judgment of the trial court and remand for a determination as to the damages due Defendants.

http://www.tba2.org/tba_files/TCA/2009/petersr_052709.pdf


DONNIE VAUGHT, ET AL. v. ALAN JAKES, SR. and wife DEBORAH JAKES, ET AL.

Court: TCA

Attorneys:

Jerry E. Farmer, Murfreesboro, Tennessee, for the appellants, Donnie Vaught, et al.

Mark Allen Polk, Murfreesboro, Tennessee, for the appellees, Alan Jakes, Sr. and wife Deborah Jakes, et al. James C. Cope, Thomas S. Santel, Jr., Murfreesboro, Tennessee, for the appellee, Rutherford County, A Political Subdivision of the State of Tennessee.

Judge: COTTRELL

A group of Rutherford County landowners whose property abutted one side of a private road which they maintained at their own expense filed a suit for trespass against a neighbor and developer who used the same road for access to houses he was building on the other side. Their suit also included a due process claim against the County for erroneously granting building permits for those houses. The trial court agreed that the building permits were granted in error, but ruled that the county's action was an innocent error rather than a due process violation. The trial court also dismissed the plaintiffs' claims against the developer, holding that he was entitled to use the road because of a permanent easement he had acquired from his predecessors-in-interest. We affirm the trial court's dismissal of the due process claim, but reverse its dismissal of the trespass claim because the evidence shows that the individual who sold the property to the defendant had abandoned the easement and, thus, that the defendant had no right to use the road.

http://www.tba2.org/tba_files/TCA/2009/vaughtd_052709.pdf


ALISON MARIE YATES v. JAMES MASON YATES

Court: TCA

Attorneys:

Eric J. Burch, Manchester, TN, for Appellant.

Darrell L. Scarlett, Murfreesboro, TN, for Appellee.

Judge: STARRORD

This case involves a divorce ending a three year marriage. Wife/Appellant appeals the trial court's division of marital property, its decision not to award alimony, and its decision granting Husband/Appellee sole decision-making authority for their only child. Because the trial court failed to apply the relevant statutory factors, we reverse the trial court's division of marital property and remand for further consideration. Wife/Appellant also appeals the trial court's order finding her in criminal contempt for willfully violating previous court orders and the parenting plan. We reverse the trial court's judgment on the issue of contempt because Wife was tried in absentia.

http://www.tba2.org/tba_files/TCA/2009/yatesa_052709.pdf


STATE OF TENNESSEE v. MICHAEL EUGENE CHITTUM

Court: TCCA

Attorneys:

Vincent P. Wyatt, Nashville, Tennessee, for the appellant, Michael Eugene Chittum.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Jason Lawson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Michael Eugene Chittum, was charged with one count of reckless vehicular homicide, a Class C felony. His application for pretrial diversion was denied by the district attorney general and that denial was upheld by the Criminal Court of Trousdale County. In this appeal, the Defendant argues that the trial court erred in upholding his denial of pretrial diversion because the district attorney general considered an irrelevant factor in his denial memorandum. On appeal, the State concedes that the district attorney general impermissibly considered an irrelevant factor and asks us to remand this case to the district attorney general for reconsideration. The Defendant, in response, asks us to reverse the decision of the trial court and remand to the trial court for entry of an order granting him pretrial diversion. After our review, we reverse, remand, and direct the entry of an order granting the Defendant pretrial diversion.

http://www.tba2.org/tba_files/TCCA/2009/chittumm_052709.pdf


STATE OF TENNESSEE v. MICHAEL FLAMINI

Court: TCCA

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee (on appeal); Michael Rothenberg, Sandy Springs, Georgia (at trial); and Steven Edward Sams, Knoxville, Tennessee (at trial), for the appellant, Michael Flamini.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Takisha Fitzgerald, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WITT

A Knox County Criminal Court jury convicted the defendant, Michael Flamini, of two counts of aggravated robbery and one count of burglary. After merging the aggravated robbery convictions, the trial court imposed concurrent, Range II sentences of 14 years for aggravated robbery and three years for burglary. In this appeal, the defendant claims that the trial court erred in the jury selection process and by denying a defense motion for continuance, that the evidence was insufficient to support his conviction of burglary, and that the sentence violates the ruling in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). Because the evidence was insufficient to support the conviction of burglary, that conviction is reversed, and the charge is dismissed. The conviction of aggravated robbery and the trial court's judgment in all other respects is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/flaminim_052709.pdf


Release of Minor's Medical Records

TN Attorney General Opinions

Date: 2009-05-27

Opinion Number: 09-95

http://www.tba2.org/tba_files/AG/2009/ag_09_95.pdf

Constitutionality of House Bill 1541 Creating Criminal Offense of Aggravated Assault of Transportation System Employees

TN Attorney General Opinions

Date: 2009-05-27

Opinion Number: 09-96

http://www.tba2.org/tba_files/AG/2009/ag_09_96.pdf

Applicability of Constitutional Protections Against Unreasonable Search and Seizure to Foreign Terrorists

TN Attorney General Opinions

Date: 2009-05-27

Opinion Number: 09-97

http://www.tba2.org/tba_files/AG/2009/ag_09_97.pdf

Number of Licensed Beds in ICF/MR Facilities

TN Attorney General Opinions

Date: 2009-05-27

Opinion Number: 09-98

http://www.tba2.org/tba_files/AG/2009/ag_09_98.pdf

Issuance of Handgun Carry Permit to Persons Committed or Hospitalized in a Mental Institution

TN Attorney General Opinions

Date: 2009-05-27

Opinion Number: 09-99

http://www.tba2.org/tba_files/AG/2009/ag_09_99.pdf

TODAY'S NEWS

Legal News
Supreme Court Report
TBA Convention 2009
Upcoming
TBA Member Services

Legal News
New site to track CLE Commission proposals
The Commission on CLE & Specialization has launched a new web site to track and discuss policy proposals pending before it. "The site makes it easier for individuals and organizations to contribute to and track discussions on policy proposals under consideration by the Commission," Commission Executive Director David N. Shearon says. Proposals under consideration include mentoring, minimum engagement requirements for distance learning programs, granting CLE credit for some forms of one-on-one coaching of attorneys, and a definitional change for ethics/professionalism programs and their accreditation."We want to make sure attorneys can both speak up and keep up," he says.
Check it out at http://cletn.wetpaint.com
Firm, attorney honored for pro bono service
The Tennessee Justice Center (TJC) has selected the law firm of Bradley Arant Boult Cummings as its Pro Bono Firm of the Year and attorney Michael Abelow with Sherrard & Roe as its Pro Bono Attorney of the Year. The firm was honored for its efforts representing needy families in TennCare appeals. Nashville lawyer Abelow was honored for his work on a lawsuit challenging the state's decision to limit home health care for adult TennCare patients.
Read the TJC announcement
Boys' and Girls' State programs come to Tenn.
The number one American Legion Boys' State program in the nation began its 45th annual event yesterday at Tennessee Tech University, reports the Cookeville Herald-Citizen. The program, which is overseen by 13th Judicial District Judge John J. Maddux Jr., will feature an address by Gov. Phil Bredesen and play host to the Tennessee Supreme Court's SCALES program, which brings justices to the schools for live arguments in actual cases. Meanwhile, the American Legion Auxiliary Girls State began over the weekend on the campus of MTSU in Murfreesboro with more than 540 rising seniors. Bredesen also will address this group, as will Tennessee Supreme Court Justice Sharon Lee, reports the Cleveland Daily Banner.

Supreme Court Report
Court overturns own ruling on questioning suspects
By a 5-4 vote, the U.S. Supreme Court yesterday overturned its own long-standing ruling that stopped police from initiating questions unless a defendant's lawyer was present. Justices supporting reversal of the 1986 opinion said "it was poorly reasoned." Justice John Paul Stevens, author of the previous opinion and the only current justice on the court at the time, led the dissent and took the extraordinary move of reading his arguments aloud from the bench.
Read more in this AP story in the Times Free Press
Sessions: Nominee must explain policy remark
U.S. Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, says senators must carefully study Supreme Court nominee Sonia Sotomayor's statement that federal appellate courts make policy. Comments about courts making policy raise red flags for strict constructionists, who believe jurists should interpret the law rather than set new precedents. While saying the nominee should be given "a fair opportunity to explain" the remark, Sessions said that on its face the statement was troubling. WRCB-TV Chattanooga reported this news from the AP.

TBA Convention 2009
Bouffants, Jimmy Church Review to share stage at Memphis event
Memphis is known for great music, so it's no surprise that this year's TBA Annual Convention in the Bluff City features great musical entertainment. One highlight will be the Memphis Music Extravaganza, where the talented and big-haired Bouffants will share the stage with the big sound of the Jimmy Church Review, one of the mid-south's leading dance and show groups. The two bands will alternate performances on one stage to give you a full night of big fun. You won't want to miss this event or any of the other activities and programs scheduled for the 2009 TBA Convention, June 18-20 at the Peabody Hotel in Memphis.
Learn more about the convention or sign up now
Upcoming
Portrait ceremony planned for Judge Rollins
The Coffee County Bar Association is hosting a portrait ceremony June 9 at 9 a.m. in honor of the late Judge John W. Rollins. The event will be held in the second floor courtroom of the Old Courthouse on the Manchester square. Judge Rollins presided in the courtroom from 1990 until his death earlier this year. Please contact Coffee County Bar Association President Craig Northcott at (931) 461-9139 or craig@vancleave-northcottlaw.com for more information.
Read the full announcement
TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
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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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