Governor proclaims October 'Celebrate Pro Bono Month'

Gov. Phil Bredesen has proclaimed October as "Tennessee Celebrates Pro Bono Month" to commend the efforts of Tennessee attorneys who volunteer their time to help meet the tremendous need for legal services of those unable to afford it. In issuing the proclamation, Bredesen said "more than one million Tennesseans are unable to afford needed legal services" and "700,000 face legal problems each year." The proclamation commends the volunteer legal services provided by Tennessee lawyers, encourages lawyers to continue providing such services, and calls on all Tennesseans to celebrate these pro bono efforts. The TBA is taking up that challenge by joining with legal organizations across the state to plan activities that will help Tennesseans in need of legal assistance, provide training for Tennessee attorneys who take part in pro bono work, and bring attention to pro bono efforts in the state. Read the proclamation

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Court: TSC


Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and P. Robin Dixon, Jr., Assistant Attorney General, for the appellant, State of Tennessee.

Travis E. Venable and J.D. Lee, Knoxville, Tennessee, for the appellee, Juanita Mullins.

Judge: KOCH

This appeal involves an application of the doctrine of collateral estoppel to a medical malpractice claim filed with the Tennessee Claims Commission that had earlier been adjudicated in litigation in the United States District Court for the Eastern District of Tennessee. The jury in the federal proceeding returned a defense verdict and declined to assign fault to any of the defendant healthcare providers, including a nonparty resident physician who had earlier been dismissed as a defendant because he was immune from suit in federal court. Following the conclusion of the federal proceeding, the State asserted that collateral estoppel barred the family of the deceased patient from pursuing their claims against the State and the resident physician before the Claims Commission. The claims commissioner denied the State's motion for summary judgment but granted an interlocutory appeal. The Court of Appeals affirmed the claims commissioner after determining that the State had failed to demonstrate that the claim against the resident physician had actually been litigated or that the plaintiff had been afforded a full and fair opportunity to litigate the claim in the federal proceeding. Mullins v. State, No. E2007-01113-COA-R9-CV, 2008 WL 199854, at *7 (Tenn. Ct. App. Jan. 24, 2008). While we have determined that the Court of Appeals erred by concluding that the issue of the resident physician's negligence had not actually been litigated in the federal proceeding, we find that both the Court of Appeals and the claims commissioner correctly concluded that the deceased patient's family did not have a full and fair opportunity to litigate their negligence claims against the resident physician and the State in the federal proceeding. Accordingly, we affirm the denial of the State's motion for summary judgment.


Court: TCA


Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Brad H. Buchanan, Assistant Attorney General, for the appellant, the Commissioner of the Tennessee Department of Revenue.

James C. Bradshaw, III, Nashville, Tennessee, for the appellee, Blue Bell Creameries, L.P.


The Tennessee Department of Revenue assessed an excise tax on a nondomiciliary subsidiary corporation which conducted business in the state based on income earned outside the state as a result of the parent corporation's redemption of outstanding stock held by the subsidiary. The Department's tax assessment was based on a determination that the income was taxable as "business earnings" under the Tennessee Excise Tax Law. The trial court found that the subsidiary and its parent corporation were not part of a unitary business relationship and, consequently, that the tax assessment was unconstitutional. Finding that the entities were not part of a unitary business relationship, the judgment of the trial court is affirmed.


Court: TCA


John T. Rice, Chattanooga, Tennessee, for the appellant, Lynn Lampton Deakins.

Glenna M. Ramer, Chattanooga, Tennessee, for the appellee, Nancy Randolph Deakins.


In this divorce case, the trial court granted Nancy Randolph Deakins ("Wife") a divorce from Lynn Lampton Deakins ("Husband") thereby ending the parties' 24-year marriage. Upon dissolving the marriage, the court valued and divided the marital estate, declined Husband's request for alimony, and awarded Wife discretionary costs, her attorney's fees and court costs. Husband challenges each of these determinations as well as an evidentiary ruling and the court's finding that Husband dissipated assets. We reverse the awards to Wife of attorney's fees and discretionary costs. We affirm the remainder of the trial court's judgment.

SWINEY Concurring


Court: TCA


Bruce S. Conley, Union City, Tennessee, for the Appellants, Julia Fisher and James Fisher.

Kyle C. Atkins, Terri Smith Crider, Humboldt, Tennessee, for the Appellees, Auto-Owners Insurance Company.


This is a summary judgment case, arising from an automobile accident. Plaintiffs/Appellants, the two injured parties, filed suit and served a copy of the summons on their insurance provider, the Appellee herein. In interpreting the policy, the trial court concluded that the policy limits of $100,000 per person and $300,000 per occurrence limited Plaintiffs/Appellants' coverage to $200,000 (or $100,000 per person). Plaintiffs/Appellants appeal, asserting that they are entitled to recover the policy limit of $300,000 per occurrence. We affirm the decision of the trial court.

STAFFORD concurring

KIRBY concurring


Court: TCA


Helen S. Rogers and Lawrence J. Kamm, Nashville, Tennessee, for the Appellant, Larson Douglas Hudson.

Phillip Robinson and Philip E. Smith, Nashville, Tennessee, for the Appellee, Elizabeth Leanne Hudson.


This case involves an appeal concerning the relocation of Elizabeth Leanne Hudson ("Mother") and her two minor children from Nashville, Tennessee, to Hopkinsville, Kentucky. Larson Douglas Hudson ("Father") opposed the relocation. After a three day bench trial, the trial court granted Mother's request to relocate after finding, pursuant to Tenn. Code Ann. section 36-6-108, that the relocation was reasonable and not vindictive. The trial court also awarded Mother attorney's fees. For the following reasons, we affirm the holding of the trial court regarding the relocation but reverse concerning the attorney's fees.

SWINEY Concurring and Dissenting


Court: TCA


Kevin R. Dean, Mt. Pleasant, South Carolina, and Jeffrey D. Boehm, Chattanooga, Tennessee, for the appellants, Sarah Elizabeth Plunkett and Robert Plunkett.

F. Laurens Brock, Alix C. Michel, and Jill Jensen Thrash, Chattanooga, Tennessee, for the appellees, Bradley-Polk, OB/GYN Services, P.C., and Michelle Y. Perry, M.D.


This is a medical malpractice action filed by Sarah Elizabeth Plunkett and her husband Robert Plunkett ("the Plaintiffs") as the natural parents and next of kin of their stillborn child. The complaint alleges that Michelle Perry, M.D., and Bradley-Polk OB/GYN Services, P.C. (collectively "the Bradley-Polk Defendants"), negligently failed to diagnose, manage and treat complications during Sarah's pregnancy and that those failures resulted in the stillbirth delivery of the Plaintiffs' infant. The Plaintiffs secured only one medical expert, Michael A. Ross, M.D., to present testimony that the Bradley-Polk Defendants violated the standard of care applicable in Bradley County at the time of treatment in early 2004. Doctor Ross was licensed in Virginia and practiced primarily in Fairfax, Virginia, and the metropolitan area of Washington, D.C. To satisfy the "locality rule" followed in Tennessee, Dr. Ross testified that Bradley County was similar to two communities where he practiced in Virginia, both of which are within the metropolitan area of Washington, D.C., but both of which are distinct communities situated about 40 to 50 miles from Washington, D.C. The Bradley-Polk Defendants first challenged Dr. Ross's qualifications to testify with a motion in limine, and the trial court denied the motion approximately one month before trial. The Bradley-Polk Defendants renewed their challenge to Dr. Ross's qualifications on the first day of trial. The trial court allowed a voir dire of Dr. Ross out of the presence of the jury and held that Dr. Ross was not qualified because the large metropolitan area where he practiced was not similar to Bradley County. Upon a stipulation of the parties that there was no proof available other than through Dr. Ross to establish a violation of the standard of care in Bradley County, the trial court denied the Plaintiffs' oral motion for continuance and granted the Bradley-Polk Defendants' motion for directed verdict. The Plaintiffs appeal. We vacate the judgment of the trial court and remand for a new trial.


Court: TCA


Bruce D. Brooke, Memphis, Tennessee for the Appellants, Ashleigh Martin and R. Martin Enterprises, Inc.

John F. Teitenberg, Nashville, Tennessee for the Appellee, Sprintz-Hall Real Estate Partners, LLC.


Sprintz-Hall Real Estate Partners, LLC ("Landlord") sued Ashleigh Martin and R. Martin Enterprises, Inc. ("Tenant") for breach of a lease. Tenant answered the complaint and counter-sued for, among other things, breach of contract, misrepresentation, and fraud. The case was tried before a jury. At the close of proof, the Trial Court granted a directed verdict for Landlord as to certain of the claims including that Tenant had breached the lease. The Trial Court further found that Landlord did not breach the lease. Tenant's claims for negligent misrepresentation and intentional misrepresentation were submitted to the jury. The jury returned a verdict finding, inter alia, that Landlord made a misrepresentation that induced Tenant to enter into the lease, that Tenant had ratified the lease, and that Landlord was entitled to a judgment of $44,064 from Tenant. The Trial Court entered judgment on the jury's verdict in favor of Landlord for $44,064 plus pre-judgment interest, attorney's fees, and costs. Landlord requested $153,771.54 in attorney's fees. After a hearing, the Trial Court awarded Landlord $25,000 in attorney's fees and $3,630.96 as expenses for court reporter fees. Tenant appeals raising issues regarding the directed verdict, jury instructions, and the Trial Court's response to a question asked by the jury. Landlord raises an issue regarding the award of attorney's fees. We affirm.


Court: TCA


William E. Phillips, Rogersville, Tennessee for the Appellant, Harold Wolfe.

Allen J. Coup, Mount Carmel, Tennessee for the Appellee, Gary Vaughan.


Gary Vaughan as Executor of the Estate of Neal C. Vaughan ("the Estate") filed a Petition to Construe the Last Will and Testament of Neal C. Vaughan ("the Will") naming Harold Wolfe and Carolyn Steffey as defendants. The case was tried without a jury, and the Trial Court entered an order on August 26, 2008 finding and holding, inter alia, that it was Neal C. Vaughan's intent to devise to Mr. Wolfe only a 43 acre tract of real property adjoining Mr. Wolfe's existing property. Mr. Wolfe appeals to this Court claiming that the Trial Court erred in holding that the Will contained a latent ambiguity, and in holding that Neal C. Vaughan intended to devise to Mr. Wolfe only the 43 acre tract. We affirm.


Court: TCCA


Gary E. Aldridge, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Leslie E. Price, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Gary E. Aldridge, was convicted in 1997 of one count of aggravated kidnapping, two counts of aggravated rape, one count of rape, and two counts of simple assault, all perpetrated upon his estranged wife. The trial court imposed an effective sentence of sixty years, with a sentence of seventeen months and twenty-nine days to be served consecutively. The judgments were affirmed on direct appeal, and our supreme court denied permission to appeal. State v. Gary Eugene Aldridge, No. 01C01-9802-CC-00075, 1999 WL 632299, at *1 (Tenn. Crim. App. Aug. 19, 1999), perm. to appeal denied (Tenn. Jan. 31, 2000). Subsequently, the petitioner began a series of post-conviction filings. This appeal resulted from the dismissal of his fourth petition for writ of habeas corpus. The State argues that the notice of appeal was untimely and, therefore, the appeal should be dismissed. We agree and dismiss the appeal.


Court: TCCA


Vicki L. Green, Millington, Tennessee, for the appellant Lois Brasfield.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Lois Brasfield, was convicted by a Shelby County Jury of felony reckless endangerment and misdemeanor assault. As a result, she was sentenced to eighteen months in incarceration. The trial court ordered her to spend 90 days in jail and the balance of the sentence on probation. On appeal, Appellant contends that the trial court erred by refusing to give the missing witness instruction to the jury at trial. After a review of the record, we conclude that Appellant failed to show that the instruction was warranted. Accordingly, the judgment of the trial court is affirmed.


Court: TCCA


Guy T. Wilkinson, District Public Defender; W. Jeffery Fagan, Assistant District Public Defender, Camden, Tennessee, for the defendant-appellant, John Anthony Cline.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa S. Roberge, Assistant Attorney General; Hansel J. McCadams, District Attorney General; Beth B. Hall and R. Adam Jowers, Assistant District Attorneys General, for the appellee, State of Tennessee.


The Defendant-Appellant, John Anthony Cline, was convicted by a Henry County Circuit Court jury of theft of property worth $1,000 or more but less than $10,000. The State filed a notice of intent to seek enhanced punishment based on several prior convictions. The trial court sentenced Cline as a Range II, multiple offender and imposed an eight-year sentence at thirty-five percent. In this appeal, Cline challenges (1) the sufficiency of the evidence and (2) the sufficiency of the State's notice to seek enhanced punishment. Upon review, we affirm the judgment of the trial court.


Court: TCCA


George Morton Googe, District Public Defender; and Kandi K. Collins, Assistant Public Defender, Jackson, Tennessee, for the petitioner-appellant, Monique Y. Croom.

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


The petitioner, Monique Y. Croom, appeals the denial of post-conviction relief, contending that she received ineffective assistance of counsel based on trial counsel's failure to: (1) maintain proper records, (2) adequately investigate her case and interview certain witnesses, (3) expedite her mental health evaluation, and (4) explain the types of homicide and the difference between consecutive and concurrent sentencing. Upon review, we affirm the judgment of the post-conviction court.


Court: TCCA


Gerald D. Skahan, Memphis, Tennessee, and Jonathan Blackman, David E. Brodsky, Carmine D. Boccuzzi, David H. Herrington, Elizabeth Vicens, and Boaz A. Weinstein, New York, New York, for the appellant, Erskine Leroy Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dennis Johnson and Tom Hoover, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Erskine Leroy Johnson, filed a petition for a writ of error coram nobis in the Shelby County Criminal Court, claiming that newly discovered evidence entitled him to a new trial. After an evidentiary hearing, the coram nobis court dismissed the petition on the basis that the petitioner was at fault for timely failing to discover the evidence. The petitioner appeals, maintaining that the newly discovered evidence entitles him to a new trial. He also argues that the coram nobis court applied the incorrect standard in denying his petition for coram nobis relief, that the court did not address all of the evidence in denying his petition, and that a review of all the evidence shows he should receive a new trial. The State argues that the coram nobis court should have dismissed the petition because it was untimely filed and that, in any event, the court properly denied the petition. Based upon our review, we conclude that due process required tolling the statute of limitations in this case and agree with the petitioner that the coram nobis court denied the petition based upon the incorrect standard. Therefore, the court's denial of the petition is reversed, and the case is remanded to the coram nobis court for reconsideration of the petition.

WILLIAMS dissenting


Court: TCCA


Michael R. Working, Memphis, Tennessee, for the appellant, Gerald Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General, Tiffani Taylor and Doug Carriker, Assistant District Attorneys General; for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Gerald Jones, appeals the post-conviction court's dismissal of his petition for post- conviction relief in which he argued that his guilty plea was unknowing and involuntary and that he received ineffective assistance of counsel. Petitioner also argues on appeal that the post-conviction court improperly excluded evidence at the post-conviction hearing related to his diminished mental capacity. We determine that Petitioner has failed to show that he received ineffective assistance or that his guilty plea was entered involuntarily. Accordingly, the judgment of the post-conviction court is affirmed.


Court: TCCA


Raymond C. Conkin, Jr., Kingsport, Tennessee, attorney for appellant, Shelbourne Mason.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, attorneys for appellee, State of Tennessee.


The petitioner, Shelbourne Mason, appeals as of right the Sullivan County Circuit Court's denial of his petition for post-conviction relief and attacks, on the grounds of ineffective assistance of counsel, his conviction of delivery of .5 grams or more of cocaine for which he received a thirty-year sentence as a career offender. Following our review, we affirm the post-conviction court's judgment.


Court: TCCA


Larry E. Copeland, Jr. (on appeal and at trial), Joseph S. Ozment (on appeal), and Sean H. Muizers, (at trial), Memphis, Tennessee, for the appellant, Shairiq Seabrooks.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dean Decandia and Ray Lepone, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Shairiq Seabrooks, was indicted on charges of first degree felony murder and first degree murder. After a jury trial, the trial court granted the defendant's motion for judgment of acquittal as to the felony murder charge and the charge of first degree murder remained. The jury convicted the defendant of the lesser-included offense of second degree murder and the defendant was sentenced as a standard Range I offender to serve twenty-two years in the Tennessee Department of Correction. The defendant has appealed, raising the following issues: (1) whether the evidence was sufficient to support his conviction of second degree murder; (2) whether the trial court erred in excluding testimony regarding the victim's prior arrest for the unlawful possession of a weapon; (3) whether the trial court erred in excluding testimony as inadmissible hearsay; (4) whether the jury charge concerning reasonable doubt was unconstitutional; and (5) whether the court erred in charging the jury on second degree murder. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the trial court.


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Legal News
Ashworth to speak at judges' conference
TBA President Gail Vaughn Ashworth will speak to members of the National Association of Women Judges next month when the group is in Memphis for its annual conference. Ashworth is scheduled to bring greetings from the bar at a lunch on Oct. 15 that will feature keynote speaker and former U.S. Supreme Court Justice Sandra Day O'Connor. The event will take place at the Peabody Hotel. Among the many Tennesseans involved in planning the conference is Supreme Court Chief Justice Janice Holder, who is event co-chair.
Learn more about the conference
LSC releases new report on justice gap
Nearly a million poor people who seek help for civil legal problems this year will be turned away by legal aid offices because of insufficient resources, says a new report released by the Legal Services Corporation (LSC). The study found that for every client served by LSC programs, another one will be turned away, and in some high-demand areas such as foreclosures, legal aid agencies are projected to turn away two clients for every one served. Researchers point to declining contributions from state and local governments and charitable sources, as well as lower interest from Interest on Lawyers' Trust Accounts (IOLTA) as contributing factors to the situation.
Download the report
Shelby commission to consider juvenile judge appeal
The Shelby County Commission will have to debate and vote on whether to appeal this week's ruling from the Tennessee Court of Appeals that a second juvenile judgeship in the county was improperly established. Several commissioners already are on record calling for an appeal but the body is split and a close vote could decide the fate of the case.
The Memphis Daily News has more
Contested Anderson County judicial race finally over
A legal battle over a contested judicial election has ended more than three years after voters cast their ballots. The Tennessee Supreme Court ruled this week that it would not hear an appeal of a lawsuit seeking to void the re-election of Anderson County General Sessions Court Judge Don Layton. The suit was brought by a political opponent who lost to Layton by 119 votes. He claimed that hundreds of voters violated state election law because they stayed too long in voting booths.
The News Sentinel reports
Paper: Stagnant pay hurts judiciary
In an editorial this week, the Paris Post Intelligencer contends that the federal judiciary is losing good people because pay has not kept pace with rising costs. In fact, the paper points out, pay for judges has not been raised in almost 20 years. The result? Too many judges are leaving the bench to go into private practice.
Read the editorial
Court clerk's office prepares for move
Washington County courtrooms in Jonesborough were quiet Tuesday but the court clerk's office was full of activity, with everyone packing for the upcoming move to the new justice center. The office will be closed the week of Oct. 19 but will be available for emergency situations. The General Sessions Court also will be moving. It will close for the same week and resume operations on Oct. 26.
Johnson City Press reports
Former UT general counsel to seek Senate seat
Ron Leadbetter, retired University of Tennessee associate general counsel, has joined the race to replace departing state Sen. Tim Burchett, R-Knoxville. Leadbetter said he would announce a treasurer, file necessary paperwork and begin fundraising next week. He will face state Rep. Stacey Campfield, R-Knoxville, in the Republican primary.
Read more in the News Sentinel
Supreme Court Report
Court to review Miranda rights
With the new U.S. Supreme Court term set to open on Monday, the court has been granting cert in several cases. It agreed today to consider a case that again seeks to clarify what the long-established Miranda rights require of police. In this case, a suspect says he understood his rights and invoked them by being uncommunicative with interrogating officers.
The Associated Press reports
Local gun control laws get day in court
The U.S. Supreme Court will also take up a challenge to Chicago's ban on handguns, opening the way for a ruling that could roll back state and local gun controls across the nation. Victory for gun-rights proponents in the case is considered likely and could lead to more legal challenges to less-restrictive laws across the country.
News Channel 9 has this AP story
Project Salute returns to Tennessee
Project SALUTE is a unique pro bono project pioneered by the University of Detroit Mercy School of Law to provide free legal assistance to low-income veterans across the country that have been denied federal veteran disability and pension benefit claims. The project is returning to Tennessee Oct. 12-15 as part of Operation Stand Down's 17th annual outreach to homeless veterans. The event will be held at the Tennessee State Guard Facility at 1164 Foster Avenue, Nashville, TN 37210. Lawyers interested in volunteering for the event should contact Alesa Silver at or (313) 596-0258.

For those interested in learning more about handling veteran cases, Project SALUTE is hosting a free webinar on Oct. 29 and 30. In exchange for the free training, materials and CLE credit, attorneys agree to handle at least one veterans' case on a pro bono basis.
Register for the training by Oct. 23
Yesterday's TBA Today incorrectly identified the winner of an award presented at last week's 2009 Equal Justice Conference at Paris Landing State Park. Sen. Eric Stewart was given the Legislative Leadership Award, along with Rep. Gary Moore.

TennBarU CLE
Transactional practice CLE focuses on business formation
Business attorneys can gain the information, tools and tips they need to successfully handle the formation of business entities at the upcoming TennBarU Transactional Practice CLE program, Oct. 22 in Nashville. The six-hour seminar -- sponsored by the TBA's Young Lawyers Division -- will offer an overview of different business entities, with an emphasis on what entities are best for various clients and business plans. The course also will feature a tax attorney discussing the implications associated with various business entities, a presentation on mergers and acquisitions -- including the ethical considerations that arise in M&A work -- and a panel discussion about the conflicts of interests business attorneys may face.
Learn more or register at TennBarU
TBA Member Services
October TBJ: health care, IOLTA, Ricci v. DeStefano
The October Tennessee Bar Journal focuses on two aspects of health care -- next-of-kin relationships, by Carol A. Schwab, and arbitration agreements, by S. Spencer Elg. IOLTA turns 25 this month, and President Gail Ashworth helps us remember its beginnings in her column. Columnist Edward G. Phillips explains the significance of the Ricci v. DeStefano decision and Kathryn Reed Edge comments on President Obama's proposal to rebuild financial supervision and regulation. Humorist Bill Haltom takes issue with those who question Atticus Finch's position on a pedestal. October is Celebrate Pro Bono Month and you can be a part of it -- find out how in this issue.

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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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