Timely TBJ covers med-mal, 'Iqbal' and banking crisis

Earlier this month when the legislature updated the already new medical malpractice law, John Day was writing up the details for the July Tennessee Bar Journal. In another timely article, Andree Sophia Blumstein gives you the latest on Twombley and Iqbal and how the pleading standard may or may not be affected. Brian Faughnan gives you the scoop on whether or not your malpractice insurance is likely to cover disciplinary defense costs. A new quarterly column by Kathryn Reed Edge, called "Bank on It," will help you understand what is happening in the roller-coaster financial world these days. TBA's new president, Gail Vaughn Ashworth, writes about how the association stood up for merit selection and what that means. Don't miss the book reviews and regular columns by Don Paine and Bill Haltom.

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TODAY'S OPINIONS
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IN THE MATTER OF: A.L.B, d/o/b 09/06/1998, M.L.B., Jr., d/o/b 12/24/2000, and M.L. B., d/o/b 04/19/2002

Court: TCA

Attorneys:

W. Ray Glasgow, Memphis, Tennessee, for the Appellant, M.L.B., Sr.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Jill Z. Grim, Assistant Attorney General, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: FARMER

Father appeals the trial court's judgment terminating his parental rights. The trial court found that the father had committed severe child abuse, that the father failed to comply with the obligations and responsibilities outlined in the permanency plans, and that conditions which led to the removal of the children still persisted. We affirm.

http://www.tba2.org/tba_files/TCA/2009/alb_063009.pdf


CLAUDE EDWARD CLEMONS v. CHRISTEL SHYE ANNE DODD CLEMONS

Court: TCA

Attorneys:

Robert D. Philyaw, Signal Mountain, Tennessee, for the appellant, Claude Edward Clemons.

John R. Morgan, Chattanooga, Tennessee, for the appellee, Christel Clemons.

Judge: COTTRELL

The trial court conducted a final divorce hearing, granted both parties a divorce, and adopted the wife's proposed parenting plan, which named her as the primary residential parent of the parties' two children. There was no court reporter present at the hearing, and therefore no transcript was produced. Father moved the court to vacate the judgment as to the parenting plan. The court granted a hearing on the motion, after which it declined to vacate its judgment. A transcript of that hearing is in the record. The husband argues on appeal that the parenting plan was not in the best interest of the children and that it did not protect the younger child from bullying by the older one. For purposes of this appeal, the parties both produced statements of the evidence relating to the final divorce decree pursuant to Rule 24(c) of the Rules of Appellate Procedure. The trial court certified the wife's statement as the more accurate. See Tenn. R. App. P. Rule 24(e). The trial court's certification is conclusive under that rule, absent extraordinary circumstances. We have examined the record and have found no basis for reversing the trial court's order regarding the parenting plan. We accordingly affirm the trial court.

http://www.tba2.org/tba_files/TCA/2009/clemonsc_063009.pdf


DONALD EARL COVILL v. TAYLOR RENEE COVILL

Court: TCA

Attorneys:

Whitney Durand, Chattanooga, Tennessee, for the appellant, Taylor Renee Covill.

Jennifer H. Lawrence, Chattanooga, Tennessee, for the appellee, Donald Earl Covill.

Judge: SUSANO

In this divorce case, the trial court dissolved the parties' marriage, established a parenting plan under which Donald Earl Covill ("Father") was designated as the primary residential parent of the parties' two children, and divided the marital estate. Taylor Renee Covill ("Mother") appeals. She questions the propriety of the parenting plan and challenges the trial court's determination that real property in Georgia belongs to Father's mother. As a part of her argument with respect to the property in Georgia, Mother contends that a "confidential relationship" existed between the parties, which was violated by Father when he failed to advise her of his purchase of this property. We affirm.

http://www.tba2.org/tba_files/TCA/2009/covilld_063009.pdf


MIKE ELLIS v. PAULINE S. SPROUSE RESIDUARY TRUST, ET AL.

Court: TCA

Attorneys:

W. Tyler Chastain and Margo J. Maxwell, Knoxville, Tennessee, for the appellants, Pauline S. Sprouse Residuary Trust and Kerry M. Sprouse.

G. Wendell Thomas, Jr., Rob Quillin, Catherine E. Shuck, and Kevin C. Stevens, Knoxville, Tennessee, for the appellee, Mike Ellis.

Judge: SUSANO

This matter is before us on remand from the Tennessee Supreme Court for consideration of issues we pretermitted in our earlier opinion, which decision the High Court reversed. In our earlier judgment, Ellis v. Sprouse, E2006-01771-COA-R3-CV, 2007 WL 3121666 (Tenn. Ct. App, E.S., filed October 26, 20007), we held that plaintiff Mike Ellis ("the Farmer") did not exercise his lease option on farmland owned by Kerry M. Sprouse ("the Landlord") by actions taken after the lease expired. As a result of that holding, we ruled that the portion of the judgment entered on a jury verdict awarding lost farming profits of $82,000 could not stand. We further held that the punitive damage award of $30,000 had to be retried since - at the time of our decision - it was based solely upon a compensatory damages award of $534 for the Landlord's trespass - a trespass that was not contested on appeal. In Ellis v. Sprouse, 280 S.W.3d. 806 (2009), the High Court held that the Farmer had indeed exercised his option to renew the lease by continuing to hold over and making his lease payments after the initial term had expired. Accordingly, the Supreme Court reversed and remanded to this Court with "directions to consider and decide the issues that were pretermitted in [our] earlier opinion in this case." We now have considered those issues, and, with respect to them, we affirm the judgment of the trial court. In light of the Supreme Court's opinion and our opinion on remand, the trial court's judgment is affirmed in toto.

http://www.tba2.org/tba_files/TCA/2009/ellism_063009.pdf


DANIEL LEON FRAIRE ET AL. v. TITAN INSURANCE COMPANY ET AL.

Court: TCA

Attorneys:

Marianna Williams, Dyersburg, Tennessee, for the appellant, Titan Insurance Company.

Brian Dunigan, Goodlettsville, Tennessee, for the appellees, Daniel Leon Fraire, Luis Gabriel Leon Fraire and James M. Rios.

Judge: CLEMENT

The issue on appeal is whether Titan Insurance Company, which issued a "no-fault" automobile insurance policy to a Michigan resident, is entitled to be reimbursed for "personal protection insurance benefits" paid to its insureds for injuries sustained in a vehicular accident in Tennessee. After the insureds entered into a substantial settlement agreement with the tortfeasors in this civil action, which compensated them in addition to the benefits paid by Titan under the no-fault policy, Titan intervened seeking reimbursement of the benefits it paid. Titan contended that it was entitled, pursuant to Michigan's No-Fault Insurance Act to reimbursement of the benefits remitted. The insureds, relying on the "made whole doctrine," contended they had not been made whole by the settlement with the tortfeasor; therefore, Titan was not entitled to reimbursement. The trial court held that the made whole doctrine applied and that the insureds had not been made whole by the settlement; therefore, Titan was not entitled to reimbursement in any amount. Under Michigan's No-Fault Insurance Act, specifically Mich. Comp. Laws section 500.3116(2), (4), the right of the no-fault insurer to reimbursement of "economic" benefits paid for the benefit of its insureds is not dependent upon whether its insureds have been made whole by a settlement with the tortfeasor. Therefore, Titan's right to reimbursement of economic benefits paid is not dependent on whether its insureds were "made whole." Accordingly, the judgment of the trial court is reversed, and we remand with instructions for the trial court to determine the extent to which Titan is entitled to be reimbursed.

http://www.tba2.org/tba_files/TCA/2009/fraired_063009.pdf


MELDRIC JONES v. MICHAEL AND PAMELA JENKINS

Court: TCA

Attorneys:

Sonya W. Henderson and Howard M. Romaine, Murfreesboro, Tennessee, for the appellant, Meldric Jones.

W. Carl Spining and David P. Vial, Nashville, Tennessee, for the appellees, Michael Jenkins and Pamela Jenkins.

Judge: DINKINS

Tenant filed a complaint against landlords for injuries allegedly caused by a dangerous condition on the leased premises and for negligence. The trial court granted summary judgment to landlords, finding that (1) both parties were aware of the dangerous condition which was present at the time the lease was signed, (2) the location of a doorway on the leased premises was not a material fact, and (3) landlords were entitled to judgment as a matter of law. Tenant challenges the trial court's grant of summary judgment; the finding that the location of the doorway was not a material fact; and the court's application of comparative fault. Finding that landlords negated an essential element of tenant's claim, that the location of the doorway was not a material fact, and that the trial court did not perform a comparative fault analysis, we affirm the trial court's grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2009/jonesm_063009.pdf


ERIC KERNEY, ET AL. v. GARY ENDRES, ET AL.

Court: TCA

Attorneys:

Margo J. Maxwell and Gwendolyn M. Kerney, Knoxville, Tennessee for the appellants, Eric Kerney and Cassandra Kerney

Gary Endres and Susan Endres, Kingsport, Tennessee, appellees, pro se.

Judge: SUSANO

Eric Kerney and wife, Cassandra Kerney, brought this suit to enjoin the operation of a beauty salon by defendant Susan Endres in the home owned by her and her husband, Gary Endres. The Kerneys and the Endreses are adjoining homeowners in the Plantation Manor Subdivision in Kingsport. The properties are subject to a restrictive covenant limiting their use to residential and forbidding commercial use. Following a bench trial, the court found the salon was merely incidental to the residential use and, as a consequence, did not violate the restriction. The court did, however, enjoin any expansion of the business. Plaintiffs appeal. We vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2009/kerneye_063009.pdf


MILLENNIUM TAXI SERVICE, L.L.C. v. CHATTANOOGA METROPOLITAN AIRPORT AUTHORITY

Court: TCA

Attorneys:

William C. Killian, Jasper, Tennessee, for the appellant, Millennium Taxi Service, L.L.C.

Hugh J. Moore, Jr., William R. Hannah, and Thomas Greenholtz, Chattanooga, Tennessee, for the appellee, Chattanooga Metropolitan Airport Authority.

Judge: SUSANO

Millennium Taxi Service, L.L.C., filed suit against the Chattanooga Metropolitan Airport Authority ("CMAA") seeking a declaration that CMAA regulations prohibiting unregistered taxicabs from picking up passengers curbside at the Chattanooga Metropolitan Airport were unconstitutional. Millennium further sought injunctive relief prohibiting enforcement of the challenged regulations. In its counterclaim, CMAA asserted that Millennium had repeatedly and flagrantly violated its regulations and requested that Millennium be permanently enjoined from engaging in any further violations. The court granted in part and denied in part summary judgment to CMAA upon finding that the challenged regulations had a rational basis and did not discriminate unreasonably against unregistered taxis. Millennium appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/millennium_063009.pdf


ARLIE OVERTON, ET AL. v. HILDA GAY LOWE, ET AL.

Court: TCA

Attorneys:

Stephen A. Marcum, Huntsville, Tennessee, for the appellants, Hilda Gay Lowe, Audie Dean Lowe and Sheilda May Mills.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellees, Arlie Overton, Novella Overton, Shairon Fay Howard, Paul David Howard, Derita Kay McCulloch, Casey McCulloch, Arlie Dennis Overton and Karen Overton.

Judge: SUSANO

In this unfortunate case, mother and father and sisters and brother, and spouses, have sued sisters and one spouse to recover the family farm and the family home place. The problem dates back to a deed made in 1985 to avoid a foreclosure sale and one made in 1986 conveying the property to the defendants. Defendants now seek to overturn a judgment entered on a jury verdict in favor of the plaintiffs. The jury found that defendants acquired title to the two properties by fraud and breached an agreement to reconvey the property back to the plaintiffs at some point in time. After the case was tried before Circuit Judge Conrad Troutman, he retired leaving incoming Judge John McAfee to deal with post-trial motions. The dispositive issues are whether Judge McAfee was able, under the circumstances, to adequately fulfill his role as thirteenth juror, whether defendants should have been granted a directed verdict on some or all of the claims and whether the defendants should have been allowed to amend their answer and argue that the statute of limitations had run on plaintiffs' claims before this lawsuit was filed in 1999. We vacate the trial court's judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/overtona_063009.pdf


IN RE T.M.H.

Court: TCA

Attorneys:

Robert Samuel Peters, Winchester, Tennessee, for the appellant, J.W.

R.H., T.H., No appellees' brief filed.

Judge: COTTRELL

The trial court terminated the parental rights of the father of a five year old boy on the grounds of abandonment and on a finding that the father had shown wanton disregard for the child's welfare and had committed severe child abuse. We affirm the termination because abandonment by pre- incarceration conduct demonstrating wanton disregard for the child's welfare was proved by clear and convincing evidence, and because clear and convincing evidence established that termination of the father's parental rights was in the child's best interest.

http://www.tba2.org/tba_files/TCA/2009/tmh_063009.pdf


JAMES MONROE WILSON v. ACIE HARRIS, ET AL.

Court: TCA

Attorneys:

Charles Dungan, Maryville, Tennessee, for the appellant, James Monroe Wilson.

Joe Weyant, Clarksville, Tennessee, for the appellees, Acie Harris and Edna Harris.

Judge: SUSANO

Our tasks on this appeal are to identify the statute of limitations that applies to a loan of money unsupported by a writing and to determine whether the action on the loan in this case was barred, as a matter of law, when the complaint was filed. The trial court granted the defendants' motion to dismiss on the ground that the applicable statute of limitations had run. Plaintiff appeals, arguing that the defendants acknowledged and promised to repay the debt and, in doing so, saved the claim from the bar of the statute of limitations. We affirm.

http://www.tba2.org/tba_files/TCA/2009/wilsonj_063009.pdf


STATE OF TENNESSEE v. DUDLEY K. BLANKENSHIP

Court: TCCA

Attorneys:

Jay Norman, Nashville, Tennessee, for the Appellant, Dudley K. Blankenship.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Dudley K. Blankenship, of one count of vandalism causing more than $1000 in damage, a Class D felony. On appeal, the Defendant contends: (1) the trial court erred when it did not require the State to elect facts to support the conviction; and (2) the evidence is insufficient to sustain his conviction. After a thorough review of the evidence and the applicable authorities, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/blakenshipd_063009.pdf


STATE OF TENNESSEE v. TERENCE ALAN CARDER

Court: TCCA

Attorneys:

Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Terence Alan Carder.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Bob Gray, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Terence Alan Carder, pled guilty to theft of property over $1,000 but less than $10,000 and received a sentence of two years to be served on probation after service of 60 days in jail. The defendant was also ordered to provide restitution to the victim in the amount of $80,000 to be paid back at $1,000 per month. On appeal, the defendant argues that the trial court erred in ordering confinement and setting restitution. Following our review, we affirm the sentence as imposed but conclude that the trial court made inadequate findings in assessing restitution pursuant to Tennessee Code Annotated section 40-35-304. Therefore, we remand for reconsideration of the restitution award based upon the required findings.

http://www.tba2.org/tba_files/TCCA/2009/cardert_063009.pdf


STATE OF TENNESSEE v. WILLIAM EDWIN HARRIS

Court: TCCA

Attorneys:

Robert Morgan (at guilty plea and sentencing hearings), Jasper, Tennessee, and Philip A. Condra (at sentencing hearing and on appeal), Jasper, Tennessee, for the Appellant, William Edwin Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; J. Michael Taylor, District Attorney General; Steven Strain, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, William Edwin Harris, pled guilty to two counts of aggravated statutory rape, a Class D felony, with an agreed sentence of three years on each count, to be served consecutively, for an effective sentence of six years. The manner of service of the sentences was to be determined by the trial court following a sentencing hearing. The trial court ordered the Defendant to serve the first three-year sentence in the Tennessee Department of Correction ("TDOC"), with the last three-year sentence to be served on probation. The Defendant appeals, contending: (1) the trial court erroneously admitted several victim impact statements during his sentencing hearing; and (2) the trial court erred when it denied him full probation. After a thorough review of the record and relevant authorities, we conclude the victim impact statements were properly admitted, and the trial court properly sentenced the Defendant. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/harrisw_063009.pdf


RICKY JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ricky Johnson, Pro Se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie Price, Assistant Attorney General; James G. Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: MCLIN

The pro se petitioner, Ricky Johnson, appeals the circuit court's denial of his petition for writ of habeas corpus. The state has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals, for this court to affirm the judgment of the circuit court by memorandum opinion. We grant the motion and affirm the judgment of the court.

http://www.tba2.org/tba_files/TCCA/2009/johnsonr_063009.pdf


STATE OF TENNESSEE v. KENNETH RAY KILPATRICK and CARRIE FAY KILPATRICK

Court: TCCA

Attorneys:

Larry Joe Hinson, Jr., Hohenwald, Tennessee, for Appellant, Kenneth Ray Kilpatrick; and John P. Cauley, Franklin, Tennessee, for Appellant, Carrie Fay Kilpatrick.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Kim Helper, District Attorney General; and Stacey Edmonson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WILLIAMS

Defendant, Kenneth Ray Kilpatrick, entered a plea of guilty in case no. 6670 to one count of manufacturing marijuana in an amount not less than twenty plants nor more than ninety-nine plants, a Class C felony; one count of facilitation of possession with intent to manufacture marijuana, a Class D felony; and one count of possession of unlawful drug paraphernalia, a Class A misdemeanor. Following a sentencing hearing, the trial court sentenced Defendant Kenneth Kilpatrick as a Range II, multiple offender, to concurrent sentences of six years for his Class C felony conviction, four years for his Class D felony conviction, and eleven months, twenty nine days for his misdemeanor conviction, for an effective sentence of six years. Defendant, Carrie Fay Kilpatrick, entered a plea of guilty in case no. 6670 to one count of facilitation of possession with intent to manufacture marijuana, a Class D felony, and possession of unlawful drug paraphernalia, a Class A misdemeanor. In case no. 6689, Defendant Carrie Kilpatrick entered a plea of guilty to one count of simple possession of marijuana, a Class A misdemeanor, and one count of possession of unlawful drug paraphernalia, a Class A misdemeanor. The trial court sentenced Defendant Carrie Kilpatrick as a Range I, standard offender, to three years for her Class D felony conviction, and eleven months, twenty-nine days for each misdemeanor conviction. The trial court ordered Defendant Carrie Kilpatrick to serve her sentences in case nos. 6670 and 6689 concurrently for an effective sentence of three years. On appeal, both Defendants argue that the trial court erred in denying their respective requests for alternative sentencing and ordering each Defendant to serve his or her sentence in confinement. Defendant Kenneth Kilpatrick also contends that the trial court erred in its application of enhancement factors in determining the length of his sentence. After a thorough review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/kilpatrickk_063009.pdf


ALLEN W. YOUNG v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Allen W. Young, Atlanta, Georgia, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Allen W. Young, filed in the Knox County Criminal Court a petition for post- conviction relief. The post-conviction court summarily dismissed the petition as untimely, and the petitioner appeals. The State filed a motion requesting that this court dismiss the petitioner's appeal as untimely or, in the alternative, affirm the post-conviction court's dismissal of the petition pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the post- conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/younga_063009.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
TBA Member Services

Legal News
Student accused of reading Palin's email asks for dismissal
Knoxville attorney Wade Davies, representing a University of Tennessee student accused of accessing Alaska Gov. Sarah Palin's e-mail account, is asking a judge today to toss out the case. He maintained at a hearing before U.S. Magistrate Judge Clifford Shirley that federal prosecutors charged the student with identity theft, even though Davies maintains that a Yahoo! account such as the one used by Palin is not a legal means of identification. Davies also accuses the government of trying to make a felony out of a misdemeanor.
The News Sentinel reports
Memphis legal department offers to pay Lee's fees
Months after the Memphis City Council voted against paying Joseph Lee's legal fees, the city's legal department has made an offer to pay Lee, the former head of Memphis, Light, Gas and Water Division, $426,422. The fee is the same amount in legal fees associated with Lee's indictment in 2007 on bribery charges. Federal prosecutors dropped the charges against Lee and former city councilman Edmund Ford a year after both were indicted for allegedly trading favors.
Read more in the Commercial Appeal
Trimble suspect changes course, judge not impressed
The man set to go to trial in two weeks in the 1975 death of 9-year-old Marsha Trimble was told by Davidson County Criminal Court Judge Steve Dozier that his strategy was "idiotic." Jerome Barrett told Dozier he has done a lot of time, and that he knows what he's doing -- and that he appreciated his concern.
Find out why from the Tennessean
Supreme Court Report
Firefighter case brings Sotomayor's ruling to forefront
Everyone has an opinion on what yesterday's Supreme Court ruling in the white firefighter's case means. The Washington Post analyzed the decision, concluding that the decision endorsed by Judge Sonia Sotomayor "gives Republicans a renewed chance to attack her speeches and writings, but is not expected to imperil her confirmation to the high court." The Associated Press reported that "foes of ... Sotomayor celebrated the high court's reversal of her decision in a reverse discrimination case." In a New York Times op-ed, Linda Greenhouse writes that the Supreme Court changed course with the ruling. One thing that is clear, she writes "is that Judge Sotomayor and her colleagues played by the old rules, and the court changed them. Although 'Sotomayor Reversed' was a frequent headline on the posts that spread quickly across the Web, it was actually the Supreme Court itself that shifted course."

Analysis: Court 'shifted to right'
USA Today's analysis of the Supreme Court's end of term says the court "shifted more to the right, making it harder for people to bring civil rights claims, rejecting challenges by environmentalists and raising the standard for older workers alleging bias on the job." The paper quotes a Harvard professor summing up the session: "There has been a modest evolution toward narrower, less sweeping opinions."

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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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