October activities will celebrate Pro Bono efforts

Legal organizations across the state have announced legal clinics, CLE programs and other events as part of Celebrate Pro Bono Month activities this October. The TBA-backed celebration is designed to bring attention to the pro bono efforts of Tennessee lawyers, to help Tennessee citizens in need of legal assistance, and to provide training for Tennessee attorneys who take part in pro bono work. "The reality for many in our state is that they cannot afford basic legal services," TBA President Gail Vaughn Ashworth says. "The TBA is committed to providing all lawyers opportunities to provide free legal assistance to these needy Tennesseans."

Learn more about activities planned for Celebrate Pro Bono Month

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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00 - TN Worker's Comp Appeals
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04 - TN Court of Appeals
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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

ALEX FRIEDMANN v. CORRECTIONS CORPORATION OF AMERICA

Court: TCA

Attorneys:

Joseph F. Welborn, III, and Jason W. Callen, Nashville, Tennessee, for the Appellant, Corrections Corporation of America.

Andrew C. Clarke, Memphis, Tennessee, for the Appellee, Alex Friedmann, individually and as Associate Editor of Prison Legal News.

Richard L. Colbert, Franklin, Tennessee, for Amicus Curiae Tennessee Secondary School Athletic Association.

Tricia Herzfeld, Nashville, Tennessee, for Amicus Curiae The American Civil Liberties Union of Tennessee, The Associated Press, The Society of Professional Journalists, The Reporters Committee for Freedom of the Press, The American Society of Newspaper Editors, and The Association of Capitol Reporters and Editors.

Judge: SWINEY

This Public Records Act case was filed by Alex Friedmann ("Plaintiff") against Corrections Corporation of America ("CCA"). Plaintiff seeks various records from CCA. Plaintiff claims that by operating prisons for the State of Tennessee and several local governmental entities in Tennessee, CCA is the functional equivalent of a governmental agency and, therefore, subject to the Public Records Act, Tenn. Code Ann. section 10-7-501 et seq. CCA maintains that it is not the functional equivalent of a governmental agency, that the Public Records Act does not apply to it, and even if it does, many of the records Plaintiff seeks are otherwise protected from disclosure. Following a hearing, the Trial Court determined that CCA was operating as the functional equivalent of a governmental agency and ordered production of most of the requested documents. CCA appeals. For the reasons discussed below, we find that CCA is operating its various facilities in Tennessee as the functional equivalent of a governmental agency. We also find that with respect to the South Central Correctional Center, the public records available to Plaintiff are limited to the documents identified in Tenn. Code Ann. section 41-24-117, which is part of the Private Prison Contracting Act of 1986. With respect to CCA's other facilities in Tennessee, we conclude that the provisions of Tenn. Code Ann. section 41-24-117 do not apply and, therefore, do not limit the documents available to Plaintiff. We remand this case to the Trial Court to determine if any of the requested documents are otherwise protected from disclosure. The judgment of the Trial Court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2009/friedmanna_091709.pdf


STEPHANIE H. HEWITT v. JOSEPH COOK

Court: TCA

Attorneys:

Mark W. Henderson, Mt. Juliet, Tennessee, for the Respondent/Appellant Joseph Cook.

Joy Davis Collier, Franklin, Tennessee, for the Petitioner/Appellee Stephanie H. Hewitt.

Judge: KIRBY

This is an appeal from the denial of a Rule 60 motion. The mother and father were divorced in 2002. In May 2005, the mother filed a contempt petition against the father for failure to pay child support and also sought a judgment for the past-due support. In September 2006, the father was found in contempt and the mother was awarded a judgment. The father paid neither the judgment nor the current support obligation. In January 2007, the mother filed another contempt petition. After the second contempt petition was filed, the father's attorney withdrew from representing him. A hearing was held on the mother's contempt petition in August 2007, but the father did not attend. In September 2007, the trial court entered another order finding the father in contempt and awarding the mother another judgment. In March 2008, the father filed a Rule 60 motion for relief from the judgment, arguing that he did not have notice of the August 2007 hearing, was never sent a copy of the judgment, and only learned of the judgment in December 2007. The motion also sought the recusal of the trial judge. The trial court denied the father's Rule 60 motion and motion for recusal. The father now appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/hewitts_091709.pdf


STEVE TAYLOR, ET AL. v. STEVE HARRIS D/B/A AUTOMOTIVE DESIGN

Court: TCA

Attorneys:

C. Michael Lawson, Esq., Nashville, Tennessee, for the appellants, Steve Taylor and Melissa Miles.

Patrick Johnson, Nashville, Tennessee, for the appellee, Steve Harris d/b/a Automotive Design.

Judge: DINKINS

Purchasers of a vehicle instituted action against the vehicle's seller and previous owners alleging violations of the Tennessee Consumer Protection Act. The Circuit Court entered judgment for the purchasers and awarded $7,500.00 in attorney's fees. Purchasers appeal the amount of the attorney's fees award. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/taylors_091709.pdf


DENNIS E. WOOD AND WIFE, SUSAN C. WOOD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.

Court: TCA

Attorneys:

James Carson Hofstetter, Nashville, Tennessee, for the appellants, Dennis E. Wood and Susan C. Wood.

James B. Lewis, Peter D. Heil, and Robert B. Young, Nashville, Tennessee, for the appellee, Lewis K. Johnson.

Judge: BENNETT

Property owners filed suit against NES and adjacent property owners over the interpretation of an easement agreement created by the property owners' predecessors in interest. NES was later dismissed from the suit. The trial court found that the easement agreement was ambiguous, that the easement included utilities, and that the plaintiff property owners unreasonably withheld their consent to the installation of utilities for the defendant property owners. The plaintiff property owners appealed. We find that the easement is not ambiguous, that the plaintiff property owners have a right to withhold their consent, and that the plaintiff property owners are entitled to their attorney fees.

http://www.tba2.org/tba_files/TCA/2009/woodd_091709.pdf


STATE OF TENNESSEE v. ATAVIS CORTEZ CUNNINGHAM

Court: TCCA

Attorneys:

Danny H. Goodman, Jr., Tiptonville, Tennessee (on appeal); and Barbara A. Deere, Dyersburg, Tennessee (at trial), for the appellant, Atavis Cortez Cunningham.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Renee Creasy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Atavis Cortez Cunningham, was convicted by a Dyer County Circuit Court jury of aggravated assault, a Class C felony, and sentenced to eight years as a Range II offender. On appeal, he argues that the jury was unconstitutionally empaneled and the evidence was insufficient to support his conviction. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/cunninghama_091709.pdf


STATE OF TENNESSEE v. JERMAINE GWIN

Court: TCCA

Attorneys:

Robert W. Jones, District Public Defender; Phyllis Aluko (on appeal) and William Robilio (at trial); Assistant Public Defenders, Memphis, Tennessee, for the defendant-appellant, Jermaine Gwin.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; Gregory Gilbert and Muriel Malone, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Jermaine Gwin, was convicted by a Shelby County jury of one count of second degree murder, a Class A felony. He received a twenty-year sentence to be served at 100% in the Tennessee Department of Correction. In this appeal, Gwin challenges (1) the sufficiency of the evidence, (2) the admission of a prior bad act under Tennessee Rule of Evidence 404(b), (3) the admission of a photograph of the crime scene (4) the excessiveness of his sentence, and (5) the cumulative effect of the alleged errors. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/gwinj_091709.pdf


STATE OF TENNESSEE v. MAXWELL M. HODGE

Court: TCCA

Attorneys:

William A. Kennedy, Blountville, Tennessee, for the appellant, Maxwell M. Hodge.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kent Chitwood and Kaylin Hortenstine, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Sullivan County Criminal Court jury found the appellant, Maxwell M. Hodge, guilty of theft of property valued over $1,000 but less than $10,000, driving on a revoked license, burglary of an automobile, and possession of burglary tools. The trial court imposed a total effective sentence of twelve years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence, the trial court's refusal to allow the appellant's trial counsel to withdraw, and the trial court's denial of alternative sentencing. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/hodgem_091709.pdf


STATE OF TENNESSEE v. MICHAEL L. HODGES

Court: TCCA

Attorneys:

Robert D. MacPherson, Lebanon, Tennessee, for the Appellant, Michael L. Hodges.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskel, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; Linda Walls, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Wilson County jury convicted the Defendant, Michael L. Hodges, of second offense driving under the influence ("DUI"), violation of the implied consent law, violation of the open container law, and failure to exercise due care. The trial court sentenced him to eleven months and twenty-nine days with seventy-five days to be served in the county jail and the remainder to be served on probation. On appeal, the Defendant contends the trial court erred when it admitted evidence of the field sobriety tests the Defendant performed. After a thorough review of the evidence and relevant authorities, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/hodgesm_091709.pdf


JOHN JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance R. Chism (on appeal) and Byron B. Winsett, III (at hearing), Memphis, Tennessee, for the appellant, John Johnson.

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

Judge: GLENN

The petitioner, John Johnson, appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel. Following our review, we conclude that the petitioner has not met his burden of demonstrating either that counsel was deficient or that any of the alleged deficiencies in representation prejudiced the outcome of his case. Accordingly, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2009/johnsonj_091709.pdf


STATE OF TENNESSEE v. ROBERT R. LADD

Court: TCCA

Attorneys:

Patrick T. McNally, Nashville, Tennessee, for the Appellant, Robert R. Ladd.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Melissa Roberge, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; Howard L. Chambers, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Robert R. Ladd, filed a Rule 9 interlocutory appeal seeking our review of the trial court's ruling that the Assistant District Attorney General ("ADA") did not abuse his discretion when he denied the Defendant's application for pretrial diversion. After a thorough review of the record and relevant authorities, we conclude that the trial court properly affirmed the ADA's denial of pretrial diversion. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/laddr_091709.pdf


STATE OF TENNESSEE v. ROBERT J. LEWELLEN

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, for the appellant, Robert J. Lewellen.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Robert J. Lewellen, pled guilty in two different cases to nineteen counts of burglary, thirteen counts of theft, five counts of vandalism, and one count of fraudulent use of a credit card and was sentenced to sixteen years, suspended to probation after service of twenty-four months in jail. On appeal, he argues that the trial court's imposition of an effective sixteen-year sentence was excessive. After review, we remand for entry of a judgment in Count 20 of Case Number 08-310 and for entry of a corrected judgment in Count 22 of Case Number 08-310. We affirm the judgments of the trial court in all other respects.

http://www.tba2.org/tba_files/TCCA/2009/lewellenr_091709.pdf


JOSE ZACARIAS QUINTEROS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Sean Lewis, Nashville, Tennessee, for the appellant, Jose Zacarias Quinteros.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Jose Zacarias Quinteros, filed a petition for post-conviction relief in which he alleges that his guilty plea was involuntary and that he received ineffective assistance of counsel after he pled guilty to driving without a license in Davidson County in April of 2007. After a hearing, the post- conviction court denied relief. 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.

http://www.tba2.org/tba_files/TCCA/2009/quinterosj_091709.pdf


STATE OF TENNESSEE v. REX A. WHITE

Court: TCCA

Attorneys:

Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Rex A. White.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Hansel J. McCadams, District Attorney General; Ed N. McDaniel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Rex A. White, requested that the trial court accept a negotiated plea agreement, and the trial court obliged. Armed with new counsel, the defendant now appeals his agreed to sentences, claiming the trial court erred in sentencing him. This appeal is dismissed as the defendant waived his right to appeal his sentence when he entered a negotiated plea agreement.

http://www.tba2.org/tba_files/TCCA/2009/whiter_091709.pdf


STATE OF TENNESSEE v. QUARTES WILLIAMS

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Barry W. Kuhn (on appeal) and Timothy Albers and Jane Sturdivant (at trial), Assistant Public Defenders, for the appellant, Quartes Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Goodman and Tracye Jones, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Quartes Williams, was convicted by a Shelby County Criminal Court jury of first degree felony murder and facilitation of especially aggravated robbery and was sentenced as a Range I offender to concurrent sentences of life imprisonment and nine years, respectively. On appeal, he argues that (1) the trial court erred in denying his motion to suppress his statement to police; (2) the trial court erred in admitting autopsy photographs; (3) the trial court erred in allowing Captain David Cupp to testify as a handwriting expert; and (4) the evidence is insufficient to support his convictions. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/williamsq_091709.pdf


Calculation of Interest and Fees under Tennessee Title Pledge Act

TN Attorney General Opinions

Date: 2009-09-17

Opinion Number: 09-155

http://www.tba2.org/tba_files/AG/2009/ag_09_155.pdf

Filing Petitions and Orders as Personal Representative of Estate as Practice of Law

TN Attorney General Opinions

Date: 2009-09-17

Opinion Number: 09-156

http://www.tba2.org/tba_files/AG/2009/ag_09_156.pdf

Recovery of Payments to Health Care Providers

TN Attorney General Opinions

Date: 2009-09-17

Opinion Number: 09-157

http://www.tba2.org/tba_files/AG/2009/ag_09_157.pdf

TODAY'S NEWS

Passages
Legal News
Upcoming
TBA Member Services

Passages
Former Tenn. majority leader, Jamestown lawyer dies
Jamestown Democrat Sam Thomas "Tommy" Burnett, a former Tennessee House Majority Leader, died today at age 67. Burnett earned his law degree from the University of Tennessee in 1967 and was first elected to the state House in 1970. During his 20 years of service, Burnett became known for his brilliant legal mind and deal making skills. His career took in turn in 1984 when he was convicted of failing to file income tax returns on time, although he was reelected to his position while serving jail time. In 1990, he was found guilty on gambling, mail fraud and conspiracy charges -- a felony conviction that stripped his law license and prohibited him from serving in the legislature. In recent years, Burnett had his law license restored and was affiliated with the Ingram Group as a lobbyist.
The Tennessean captures the highs and lows of his career
Former TBA first lady dies following long illness
Former TBA President Charlie Gearhiser's wife, Joy, died today of complications from Alzheimer's. She had suffered from the condition for the past two years. Gearhiser, a partner in the Chattanooga firm of Gearhiser, Peters, Lockaby, Cavett & Elliott, served as TBA president from 2001 to 2002 and Joy played a prominent role as first lady during his tenure. A memorial service will be held at the Heritage Funeral Home at noon on Monday. Visitation will be held on Sunday from 4 to 8 p.m. and on Monday from 11 a.m. to noon. The funeral home is located at 7454 East Brainerd Road in Chattanooga.

Legal News
Bonnyman recognized by Alabama Law School
The University of Alabama School of Law has named Nashville attorney Gordon Bonnyman Jr. as its 2009 recipient of the Morris Dees Justice Award. Bonnyman, who founded the Tennessee Justice Center in 1996 with Michele Johnson, was recognized for representing low-income clients, the elderly, prisoners, disabled persons and the uninsured. He has been the lead counsel in more than a dozen class action lawsuits, many of which have served as models for legal services organizations throughout the United States, the law school reports.
Read more about the Bonnyman's accomplishments
UT, Memphis Law make 'Best Value' ranking
The National Jurist released its annual ranking of "Best Value" law schools this month, identifying 65 law schools that carry a low price tag but do well in preparing students for today's competitive job market. The University of Tennessee College of Law came in at 14 on the list with an in-state tuition rate of $11,502. It was followed by number 15, University of Memphis Cecil C. Humphreys School of Law, with in-state tuition costs of $11,412.
See the full ranking
New Vanderbilt law dean talks about school's future
New Vanderbilt Law School Dean Chris Guthrie recently sat down with 2008 law school graduate Tracy Kane to discuss his goals, his passion for legal education and the future of the school. That interview, published in the September issue of the Nashville Bar Journal, is now available on the law school's website.
Read it here
Memphis Bar Foundation names new fellows
The Memphis Bar Foundation has inducted new fellows. They are: Phyllis Aluko, Shelby County Public Defender's Office; J. Steven Anderson, Williams McDaniel Wolfe & Womack; Stephen Bush, Shelby County Public Defender's Office; Kirk Caraway, Allen Summers Simpson Lillie & Gresham; U.S. Magistrate Judge Charmiane Claxton; Criminal Court Judge Lee Coffee; Thomas Courtney, ServiceMaster; J. Michael Fletcher; Sara Flowers-Dent, AutoZone; Regina Guy, SpenceWalk; Jennifer Hagerman, Burch Porter & Johnson; George Higgs, Stone Higgs & Drexler; Timothy Holton, Deal Cooper Holton; Sean Antone Hunt, Spicer Flynn & Rudstrom; Yolanda Ingram, Cecil C. Humphreys School of Law; Danny Kail, Shelby County Government; Larry Ledbetter, AutoZone; Stephen Libby; Bobby Martin, The Cochran Firm; Bruce McMullen, Baker Donelson Bearman Caldwell & Berkowitz; Mitch Moskovitz, Shea Moskovitz & McGhee; Marc Reisman, Rosenblum & Reisman; Russell Reviere, Rainey Kizer Reviere & Bell; Larry Scroggs, Juvenile Court of Memphis & Shelby County; Criminal Court Judge Paula Skahan; Corey B. Trotz, Nahon Sahavorich & Trotz; Danny Van Horn, Butler Snow O'Mara Stevens & Cannada; Bernie Weinman, Weinman & Associates; Sonja White, Memphis Area Legal Services; and General Sessions Criminal Court Judge Lee Wilson.

Hermitage Hotel celebrates 100 years
Nashville's Hermitage Hotel, the site of many great bar events -- including the last five Leadership Conferences -- is celebrating its 100-year anniversary today. Events included an ice cream social for the public, a mayoral proclamation and a new book about the hotel. The 2010 Leadership Conference will return to the Hermitage this coming January. But you don't have to wait until then to visit Tennessee's only five-star, five-diamond hotel. TBA members enjoy a special rate of $199 year round when they ask for the bar association's group rate.
See historical photos of the hotel in the Tennessean
Memphis lawyer opens own firm after partners depart
The Memphis law firm of Luckett Pinstein Ridder PC dissolved this summer when partner Lorrie Ridder left to fill a Shelby County Circuit Court vacancy and partner Bill Luckett left to focus on a bid for Mississippi governor. Stephen H. Biller, who served as of counsel, took the opportunity to open his own law office -- the Biller Law Firm. He recently hired another attorney and several staff, and in an ironic twist, hired Luckett to serve as of counsel for him.
The Memphis Daily News looks at Biller's challenges and successes as a new solo practioner
Upcoming
Wills for Heroes volunteers needed
The TBA YLD Wills for Heroes Committee has planned legal clinics across the state to provide free wills and advance directives to firefighters, law enforcement officers and other emergency personnel. The effort builds on last year's work, which served more than 400 first responders. The first event of the year will take place Saturday, Sept. 26, from 9 a.m. to 5 p.m. at the Germantown Public Library in Shelby County. Volunteers are needed for both morning and afternoon sessions to draft wills and serve as notaries and witnesses. If you are interested in helping, please contact Asa Baker at asabaker@me.com.
Learn more about Wills for Heroes
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
Click here

 
 
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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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