author: VICTOR C. HOWARD, Judge.

text:
    Terri KRAUSE, Appellant Pro Se, v. ASSURANT, INC., Defendant, Division of Employment Security, Respondent.
    No. WD 64554.
    Missouri Court of Appeals, Western District.
    March 29, 2005.

      Terri Krause, Kansas City, pro se.
    Cynthia Ann Quetsch, Jefferson City, for respondent.
    Before SPINDEN, P.J., HOWARD and NEWTON, JJ.
   VICTOR C. HOWARD, Judge.

Terri Krause appeals from an order of the Labor and Industrial Relations Commission (the “Commission”), which held that Ms. Krause was disqualified under section 288.050, RSMo 2000, from receiving unemployment benefits because she voluntarily left work without good cause attributable to her work or employer. The Division of Employment Security (the “Division”) filed a motion to strike Ms. Krause’s brief for non-compliance with Rule 84.04, which we took with the case.

For the reasons set forth below, we grant the Division’s motion to strike and dismiss Ms. Krause’s appeal for non-compliance with Rule 84.04.

Background

On May 12, 2004, Ms. Krause filed a claim for unemployment benefits. The claim indicates that her reason for separating from her employment with Assurant, Inc. was that she had quit. Assurant, Inc., Ms. Krause’s employer, did not file a protest. On May 28, 2004, the Division issued its determination that Ms. Krause was disqualified under section 288.050, RSMo 2000, from receiving benefits because she voluntarily left work without good cause attributable to her work or employer.

Ms. Krause appealed to the Division’s appeals tribunal. A referee with the appeals tribunal conducted a hearing by telephone conference on June 18, 2004, during which Ms. Krause testified under oath. The following findings of fact appear in the appeals tribunal’s June 23, 2004 decision:

[Ms. Krause] was a project manager for [Assurant] since 2000. After she lost two months work due to a bipolar condition that no doctor related to her work or employer, she was demoted to a programmer upon her return because there were no current (or later for that matter) project manager openings. Her job was in jeopardy by January of 200[4]; the employer could not justify continuing to pay her at her project manager rate unless she drastically improved her programming skills. On April 30, 2004 she was told she would be discharged in two months if her programming skills did not reach target level. On Monday, May 3, 2004 (after considering her options over the weekend) [Ms. Krause] quit, and was paid three months salary as a severance package that she knew would not be available if she waited until July to separate. No one pressured [Ms. Krause] to quit or to take the severance package. [Assurant] never promised to keep her project manager job open.

In its conclusions of law, the appeals tribunal explained:

[Ms. Krause] quit on May 3, 2004. At issue is whether she quit with good cause attributable to her work or employer.
In order to establish good cause to quit, [Ms. Krause] must show she quit for a reason or reasons that were reasonable under the standard of the average man or woman, and that there was a good-faith effort to remedy the dispute or situation before quitting. Further, the reason or reasons to quit must be related to the work or the employer.
[Ms. Krause bore the burden of proving good cause.]
[Ms. Krause]’s problems began with her medical condition that was unrelated to work or [Assurant]. [Assurant] tried to accommodate her by paying project manager salary for programming, but could not do this forever. It was not set in stone that [Ms. Krause] would be gone by July of 2004. She was not forced to quit, and not forced to accept a three-month pay severance package. [Ms. Krause] has not met her burden to show good cause to quit under the Missouri Employment Security Law. The Appeals Tribunal concludes she left work voluntarily on May 3, 2004 without good cause attributable to her work or [Assurant].

Thus, it affirmed the Division’s determination.

Ms. Krause applied for review of the appeals tribunal’s decision by the Labor and Industrial Relations Commission (the “Commission”). The Commission denied Ms. Krause’s request to submit additional testimony regarding her separation from employment and a memo dated April 27, 2004. On August 14, 2004, the Commission entered an order affirming and adopting the decision of the Appeals Tribunal. This appeal follows.

Motion to Strike

The Division filed a motion to strike Ms. Krause’s amended brief for failure to comply with Rule 84.04. We took the motion with the ease.

Rule 84.04 governs the contents of all briefs filed in this court. Rule 84.04(a) provides:

The brief for appellant shall contain:
(1) A detailed table of contents, with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with reference to the pages of the brief where they are cited;
(2) A concise statement of the grounds on which jurisdiction of the review court is invoked;
(3) A statement of facts;
(4) The points relied on;
(5) An argument, which shall substantially follow the order of the points relied on; and
(6) A short conclusion stating the precise relief sought.

The subsequent subsections — 84.04(b) through (i) — further detail what each of these required contents of an appellate brief should include. We insist upon compliance with Rule 84.04 because without such compliance, we would be forced to speculate on the facts and arguments not asserted, and by doing so, we would be advocating for the non-compliant party, which this court cannot and will not do. Nicholson v. Transamerica Occidental Life Ins. Co., 144 S.W.3d 302, 305 (Mo. App. W.D.2004).

Ms. Krause is acting pro se; that is, she is representing herself in this appeal. But her self-represented status does not exempt her from the requirements of the procedural rules governing proceeding before this court. Id. While we recognize and are sensitive to problems often encountered by pro se litigants, we nevertheless hold them responsible for compliance with such rules just as we do attorneys. Id. This court cannot grant preferential treatment regarding compliance with these rules. Id.

Ms. Krause’s brief does not comply with most of the requirements of Rule 84.04. For example, her statement of facts consists of one short paragraph without any “specific page references to the legal file or the transcript” as required by Rule 84.04(i). Her brief does not contain any point relied on to identify the action of the Commission being challenged and the legal reasons for her claim of reversible error as required by Rule 84.04(d)(2).

Even if Ms. Krause did properly assert a claim on appeal, there is no appendix including a copy of the decision in question or the text of statutes, ordinances, court rules, or agency rules relevant to any claim on appeal as required by Rule 84.04(h)(1) and (2). Her entire argument is as follows:

The decision at issue here is that [Ms. Krause] was unaware [that] she was terminated from her employment. Had the employer provided the information to the Division of Employment Security, [Ms. Krause] would have been aware she had been terminated. There was not sufficient competent evidence in the record to warrant the making of the award[.]

Just reading this “argument” leaves us clueless as to what she is claiming on appeal.

In her statement of facts, Ms. Krause does reference an “attachment” to her brief. This attachment is a letter from her employer to the Division dated November 8, 2004, almost three months after the Commission issued its order that is the basis of Ms. Krause’s appeal. Although not entirely clear, given Ms. Krause’s reference to this letter and her “argument” above, it appears she is suggesting that she was terminated or discharged, instead of voluntarily leaving work.

This court need not interpret the meaning of this “attachment.” A review of the record on appeal indicates that whether Ms. Krause was discharged was not addressed by the deputy or by the appeals tribunal, nor did Ms. Krause address it at the hearing. The only issue before the Division, the appeals tribunal, and the Commission was whether Ms. Krause was disqualified for unemployment benefits because she voluntarily left work without good cause attributable to the work or the employer. On appeal, we can “only address issues that were determined by the Commission and may not consider issues not before the Commission.” Perry v. Tiersma, 148 S.W.3d 833, 835 (Mo.App. S.D.2004). “An appellant that does not file a brief on the issues pertaining to its appeal is deemed to have abandoned that appeal.” Vaughn v. Table Rock Asphalt Constr. Co., 984 S.W.2d 215, 216 (Mo.App. S.D.1999).

Of course, wherever possible, we prefer to “ ‘dispose of a case on the merits rather than to dismiss an appeal for deficiencies in the brief.’ ” Nicholson, 144 S.W.3d at 308 (quoting Podlesak v. Wesley, 849 S.W.2d 728, 731 (Mo.App. S.D.1993)). But here, as in Nicholson, “the deficiencies in Ms. [Krause’s] brief are so substantial that, to conduct any meaningful review, this court ‘would be forced to speculate not only as to the claims being raised, but as to the facts and arguments being relied on in support of the same.’ ” Id. (quoting Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo. App. W.D.2003)).

We have no choice but to decline review. We grant the Division’s motion to strike Ms. Krause’s brief and dismiss the appeal.

SPINDEN, P.J., and NEWTON, J., concur.

      . Rule references are to the Missouri Court Rules, vol. 1, 2004.

      . In accordance with section 288.050, this decision provides that Ms. Krause “is disqualified until she has earned wages for insured work equal to ten times her weekly benefit amount after May 3, 2004.”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Donald L. DAVIS, Appellant, v. BEST BUY CO., INC., et al., Respondents.
    No. WD 63470.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    George A. Barton, Kansas City, MO, for appellant.
    Heather Woodson, Overland Park, KS, for respondents.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM:

Donald L. Davis appeals following the trial court’s grant of summary judgment in favor of Best Buy Company, Inc., and Best Buy of Minnesota, Inc., on his first amended class action petition, in which he asserted claims for violation of the Missouri Merchandising Practices Act and breach of contract. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment it affirmed. Rule 84.16(b).


author: PER CURIAM.

text:
    Jay MEFFORD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64257.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Nancy A. McKerrow, Columbia, MO, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, and Lacey R. Searfoss, Jefferson City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Jay Mefford appeals the denial of his motion for post-conviction relief pursuant to Rule 24.035 without an evidentiary hearing.

For the reasons set forth in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Clarence A. BELL, Jr., Appellant.
    No. WD 63659.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Melinda Kay Pendergraph, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before SPINDEN, P.J., HOWARD and NEWTON, JJ.
   ORDER

PER CURIAM.

The State charged Appellant Clarence Bell as a prior drug offender with six counts of the class B felony of delivery of a controlled substance in violation of section 195.211 RSMo 2000. The six counts stemmed from crack cocaine sales Bell allegedly made to a confidential informant on six different dates in December 2001, and January 2002. After a trial, the jury acquitted Bell on five of the charges but convicted him of one count of delivery of a controlled substance on January 11, 2002.

On appeal from the judgment entered upon his conviction, Bell claims the trial court abused its discretion by: (I) not striking a juror for cause; (II) allowing a witness for the State to invoke his Fifth Amendment privilege against self-incrimination; and (III) overruling Bell’s request for continuance to investigate the State’s witness and allowing the witness to testify. We affirm the judgment pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Troy C. HUDSON, Appellant.
    No. WD 63668.
    Missouri Court of Appeals, Western District.
    March 29, 2005.

      Andrew A. Schroeder, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Troy Hudson appeals his conviction by jury on one count of violating an order of protection and three counts of forcible sodomy. Upon review of the record, we find no reversible error and affirm the convictions. We have provided the parties with a Memorandum explaining the reasons for our decision, because no precedential purpose would be served by a published opinion. Rule 30.25(b).

The judgment of the trial court is affirmed.


text:
    Christopher WATKINS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63799.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   ORDER

PER CURIAM.

Christopher Watkins appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Willie E. CRAFT, Appellant.
    No. WD 63802.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Irene C. Karns, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before SPINDEN, P.J., HOWARD and NEWTON, JJ.
   ORDER

PER CURIAM.

Appellant Willie Craft (“Craft”) appeals from a conviction in the Circuit Court of Boone County for trafficking drugs in the second degree in violation of section 195.223, RSMo 2000. In his sole point on appeal, Craft argues the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence because the State’s evidence did not establish that Craft knew or was aware that the crack cocaine he possessed weighed more than two grams.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    Mark J. FISCHER, Respondent, v. Patricia Ann FISCHER, Appellant.
    No. WD 63986.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Michael W. Blanton, Lee’s Summit, MO, for Appellant.
    William J. Hudnall, Kansas City, MO, for Respondent.
    Before: LOWENSTEIN, P.J., BRECKENRIDGE and SMART, JJ.
   ORDER

PER CURIAM.

This appeal involves the enforceability of a promissory note made by the respondent. The trial court determined that the note was unenforceable for lack of consideration. The judgment is affirmed. Rule 84.16(b).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re the MARRIAGE OF Thomas R. GARRISON and Amy D. Garrison. Thomas R. Garrison, Petitioner-Respondent, v. Amy D. Garrison, Respondent-Appellant.
    No. 26418.
    Missouri Court of Appeals, Southern District, Division One.
    March 29, 2005.

      Amy D. Garrison, Carl Junction, pro se.
    John J. Podleski, Carthage, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

The Circuit Court of Jasper County, Missouri, entered a judgment dissolving the marriage of Amy Garrison (“Mother”) and Thomas Garrison (“Father”). Father filed a motion to modify the judgment and Mother filed a counter-motion to modify. Mother later filed an amended counter-motion and a second amended counter-motion. The trial court then entered a judgment, which purported to modify the custodial schedule. Mother appeals pro se.

Pro se litigants must satisfy all of the relevant rules of procedure and this Court cannot hold a pro se litigant to a lower standard of performance than a litigant who is represented by counsel. Speer v. K & B Leather Co., 150 S.W.3d 387, 388 (Mo.App. S.D.2004). We explained the justification for this rule in Lane v. Elliott, 102 S.W.3d 53 (Mo.App. S.D.2003):

We recognize that Appellant is appealing as a pro se litigant, however, pro se litigants are still bound by the same rules of procedure as attorneys. ‘While this court recognizes the problems faced by pro se litigants, we cannot relax our standards for non lawyers.’ This refusal to relax the standards for an appeal for pro se litigants is not due to a lack of sympathy, but rather ‘it is necessitated by the requirements of judicial impartiality, judicial economy and fairness to all parties.’

Lane, 102 S.W.3d at 55 (quoting Sutton v. Goldenberg, 862 S.W.2d 515, 517 (Mo.App. E.D.1993)).

A review of Mother’s brief shows a total failure to present a discernible claim for relief. First, her brief does not contain a clear jurisdictional statement or a clear statement of the standard of review. See Rule 84.04(b); 84.04(e). Inexplicably, mother claims jurisdiction based on a federal statute. Second, and more importantly, the statement of facts consists of only one sentence: “The district court modified custody of children Jessica and Brooke without proof or evidence of a substantial or continuing change in mother’s or children’s home, life, or school.” This sentence is not “a fair and concise statement of the facts relevant to the question presented for determination without argument.” Rule 84.04(e). The statement does not contain any facts supporting or contradicting what appears to be her argument.

Mother’s point relied on is equally defective:

The trial court erred in modifying Joint Legal Custody to give father (appellee) primary Residence because there was no substantial or continuing change in mother’s or children’s home, Lifestyle, or education that would constitute harm or neglect of the children, in that, it would not Be in the best interests of the children to take more time away from one parent and give to the Other.

Although her point relied on does identify the ruling that she is challenging, and it seems to allude to legal reasons for reversible error, it fails to explain how, in the context of this case, those legal reasons support her claim of reversible error. See Rule 84.04(d). “[I]t is not enough for a point relied on to simply state that the trial court was wrong without alluding to some evidence or testimony that gives support to such a conclusion.” Petersen v. Cook, 92 S.W.3d 831, 834 (MoApp. S.D. 2003). The purpose of this rule is to give appropriate notice to the opposing party of the precise matters in contention and to inform the appellate court of the issues presented for review. Harrison v. Woods Super Mkts., Inc., 115 S.W.3d 384, 387 (Mo.App. S.D.2003). This deficiency is particularly egregious here because Mother’s statement of facts did not include any facts to assist the Court.

Next, Mother’s brief failed to cite authorities upon which she principally relied after each point relied on. Rule 84.04(d)(5). This Court is justified in considering the points abandoned and dismissing the appeal when an appellant fails to cite relevant authority or explain why none exists. Lane, 102 S.W.3d at 55. Finally, Mother’s argument itself provides no guidance to the Court. Her one-page argument cites only two propositions of law regarding the modification of custody. She gives absolutely no facts or analysis to support her abstract principles of law.

If these were merely procedural defects or any one of these procedural defects stood alone, we might be hesitant to dismiss this appeal; however, we find that Mother’s brief fails to substantively comply with Rule 84.04. This Court cannot make up Mother’s argument without the benefit of any facts to support the principles of law anywhere in her brief. Because Mother’s brief does not sufficiently support her claim of error, an examination of her claim would require this Court to comb the record to find evidence to support the merits of her appeal. Arenson v. Arenson, 787 S.W.2d 845, 846 (Mo. App. E.D.1990). This Court is not authorized to advocate for Mother on appeal by effectively rewriting her brief, and we have no choice but to dismiss her appeal. Harrison, 115 S.W.3d at 387; Pullen v. Pullen, 75 S.W.3d 838, 840 (Mo.App. S.D.2002).

The appeal is dismissed.

GARRISON, P.J., and PREWITT, J., concur.

      . All rule references are to Supreme Court Rules (2004), unless otherwise stated.


author: E. RILEY ANDERSON, J.,

text:
    Terry Ruddle MAHONEY v. NATIONSBANK OF TENNESSEE, N.A.
    Supreme Court of Tennessee, at Memphis.
    Nov. 9, 2004 Session at Memphis.
    Feb. 23, 2005.
    Rehearing Denied March 30, 2005.

      Raymond J. Lepone and Robin H. Rasmussen, Memphis, Tennessee, for the Appellant, NationsBank of Tennessee, N.A.
    William M. Jeter, Memphis, Tennessee, for the Appellee, Terry Ruddle Mahoney.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted review in this workers’ compensation case to determine whether the trial court erred in awarding benefits against the defendant employer where the employee was first injured and missed work while employed by a previous employer. After reviewing the record and applicable authority, we conclude that the trial court erred in awarding benefits against the defendant employer because the preponderance of the evidence is that the employee’s gradually-occurring injury became compensable while working for the prior employer and did not progress while working for the defendant employer. Accordingly, we reverse the trial court’s judgment.

In this workers’ compensation case, the dispute we address centers on whether in a merger of two employers the resulting employer may be held liable for an employee’s permanent partial disability benefits when the employee was first injured, missed work, and received partial benefits prior to the merger.

The employee contends that the resulting employer — the defendant herein— should be liable because she suffered a gradually-occurring injury and was last exposed to the conditions causing her injury after the merger. The defendant employer argues that the employee first reported her injury, was treated, and missed work prior to the merger and that her injury did not progress and was not aggravated in her employment following the merger. As a result, the defendant employer should not be liable.

BACKGROUND

Terry Ruddle Mahoney (“Mahoney”), the employee in this case, went to work in collections for Boatmen’s Bank in 1991. Mahoney suffered an on-the-job wrist injury in 1996 and was diagnosed with carpal tunnel syndrome. On January 1, 1997, Boatmen’s Bank merged with Nations-Bank. Mahoney filed a workers’ compensation suit on March 19,1998, against both Boatmen’s Bank and NationsBank, but Mahoney voluntarily dismissed Boatmen’s Bank in January of 2000. Consequently, Boatmen’s Bank is not a party to this action.

Mahoney testified at trial as follows. She began experiencing problems with her wrists in 1995' or 1996, including numbness, tingling and soreness around her fingers and wrists. She reported the injury to the benefits manager at Boatmen’s Bank in June of 1996, and she was provided medical care. She first missed work in June of 1996 and was on short-term disability leave from work for three months between June and September of 1996. In September of 1996, her doctors told her that she had carpal tunnel syndrome, and she was “on and off [work] quite some time” between June of 1996 and January of 1997.

Mahoney was laid off on March 31, 1997, as part of the merger between Boatmen’s Bank and NationsBank. According to the severance agreement between Mahoney and NationsBank, Mahoney was paid ten weeks of salary continuation following her last day of employment on March 31, 1997, for a total of $4,357. In exchange for the payment, Mahoney agreed “to release Na-tionsBank from any and all claims, suits, demands, or other causes of action of any kind.... ” The release, however, specifically excluded Mahoney’s workers’ compensation claim against Boatmen’s Bank, providing:

Notwithstanding the foregoing, nothing herein shall be construed to constitute a waiver of the Worker’s Compensation claim you currently have against Boatmen’s Banc [sic] Shares, Inc. styled as Ten [sic] Ruddle v. Boatmen’s Banc Shares, Inc., Civil Action Number 85096209908.

Mahoney signed the release agreement on March 14,1997.

Mahoney testified that after the merger in January 1997, she was working only two to three days a week. She testified that the pain she was experiencing in her wrists continued into and through her employment with NationsBank and continued up until the time of trial in November 2002.

Dr. Riley Jones, who treated Mahoney in January and February of 1997, testified by deposition that at the time he treated her, she had mild bilateral carpal tunnel syndrome. He performed an electromyog-raphy test (“EMG”) on her and reviewed her previous medical records. Dr. Jones testified that there was “no significant change” in Mahoney’s condition since the previous July. He testified that the carpal tunnel was work-related but that Mahoney had “more of a stress phenomena than anything else” and that the stress was not work-related. He testified that the carpal tunnel syndrome had not advanced in severity from July 1996 to January 1997.

Dr. Joseph Boals, who examined Maho-ney in January 2002 at the request of her lawyer, also testified by deposition that Mahoney’s carpal tunnel syndrome was work-related but that her other conditions were not. He testified that he agreed with the conclusion that the 1997 EMG did not show any significant change in Mahoney’s condition since 1996.

Procedural History

Mahoney filed a complaint for workers’ compensation benefits against “Nations-Bank of Tennessee, N.A., formerly known as Boatmen’s Bank, N.A.,” and Fireman’s Fund Insurance, Boatmen’s Bank’s workers’ compensation insurer, on March 19, 1998.

Boatmen’s Bank and Fireman’s Fund filed an answer on June 5, 1998, denying that Mahoney was entitled to any workers’ compensation benefits through Boatmen’s Bank or Fireman’s Fund as of March 31, 1997. On December 2, 1998, NationsBank filed an answer denying all of Mahoney’s claims for injury and compensation.

On August 18, 1999, Boatmen’s Bank and Firemen’s Fund filed a motion to dismiss on the grounds that the injury complained of occurred on March 31, 1997. The motion reasoned that the complaint alleged a gradual injury that allegedly continued and was aggravated by employment through and until March 31,1997, and that Mahoney was not employed by Boatmen’s Bank, and thus not covered by Firemen’s Fund as of that date.

On January 3, 2000, Mahoney voluntarily dismissed without prejudice Boatmen’s Bank and Fireman’s Fund as defendants. The order specified that the dismissal was as to Boatmen’s Bank and Fireman’s Fund only. No further action was taken in the case until plaintiffs attorney in late 2000 moved the court to set the case for trial.

The trial court set the case, and it was finally tried before Judge George H. Brown, Jr., in Shelby County Circuit Court on November 12, 2002, more than six years after the initial injury. After hearing testimony from Mahoney and considering the evidentiary depositions of Dr. Jones and Dr. Boals, the trial court awarded benefits to Mahoney against NationsBank. The court concluded that Mahoney “suffered an injury arising out of and in the course and scope of her employment with the defendant, NationsBank.” The trial court further concluded that Mahoney’s injury was a “continuous injury.” The court found that Mahoney had suffered a vocational disability of twenty-five percent (25%) to each arm, entitling her to a judgment of $29,049.00, and ordered that the payment be made in a lump sum.

NationsBank appealed. We accepted review before the case was heard or considered by the Special Workers’ Compensation Appeals Panel.

ANALYSIS

Our standard of review of factual issues in a workers’ compensation case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the trial court’s factual findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (1999); see also Houser v. Bi-Lo, Inc., 36 S.W.3d 68, 70-71 (Tenn.2001). When the trial court has seen the witnesses and heard the testimony, especially where issues of credibility and the weight of testimony are involved, the appellate court must extend considerable deference to the tidal court’s factual findings. Houser, 36 S.W.3d at 71. In reviewing documentary evidence such as depositions, however, we extend no deference to the trial court’s findings. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 734 (Tenn.2000). Our standard of review of questions of law is de novo without a presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.2003).

As a threshold issue, we must determine whether to treat Boatmen’s Bank and Na-tionsBank as one entity. We note that Mahoney’s position is not clear on this point. At oral argument before this Court, Mahoney’s attorney argued that the banks are one entity. However, in her brief to this Court, Mahoney stated that the two banks were separate employers, not a single entity. Mahoney brought her complaint against “NationsBank, formerly known as Boatmen’s Bank,” but Boatmen’s Bank and NationsBank filed separate answers. Additionally, the release Mahoney signed prior to her termination from Nati-onsBank specifically preserved her workers’ compensation claim against Boatmen’s Bank, which would seem to be unnecessary if NationsBank were indeed a separate entity. Because the record was never developed as to the merger agreement and whether and to what extent’NationsBank is responsible for Boatmen’s Bank’s liabilities, we will treat the two as separate employers for purposes of our analysis. Cf. Perrin, 120 S.W.3d at 827.

Moreover, Mahoney’s voluntary dismissal without prejudice was as to Boatmen’s Bank and its insurer, Fireman’s Fund, only. As NationsBank points out, if the two banks are a single entity, then the voluntary dismissal would have operated to dismiss the entire case and, because Maho-ney did not re-file within one year, the statute of limitations would now bar her claim against NationsBank. See Tenn. Code Ann. § 50-6-203 (1999) (amended January 1, 2005).

Discussion

Mahoney argues that NationsBank should be liable for her injury because she suffered a compensable, gradually-occurring injury and NationsBank was the employer wjiere she was last exposed to the conditions causing her injury. Nations-Bank agrees that Mahoney suffered a com-pensable, gradually-occurring injury but argues that because Mahoney first reported her injury, was treated, and missed work while employed by Boatmen’s Bank, NationsBank should not be liable for Ma-honey’s claim. Because the parties disagree about the analytic framework applicable to this case, we begin with a review of the law governing gradually-occurring injuries such as carpal tunnel syndrome.

Gradually-Occurring Injuries are “Accidental” Injuries

Tennessee’s Workers’ Compensation Act provides that accidental injuries arising out of and in the course and scope of employment are compensable. Tenn. Code Ann. § 50-6-103(a) (1999). We have long-recognized that gradually-occurring injuries are compensable as accidental injuries under the Act even though it is difficult, if not impossible, to link such injuries to a particular “accident.” Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 69 (1961); see also Lawson v. Lear Seating Corp., 944 S.W.2d 340, 341 (Tenn.1997); Barker v. Home-Crest Corp., 805 S.W.2d 373, 375 (Tenn.1991). Carpal tunnel syndrome is compensable as a gradually-occurring accidental injury. See, e.g., Lawson, 944 S.W.2d at 341; Barker, 805 S.W.2d at 375.

Since recognizing that gradually-occurring injuries are compensable under the Act, this Court has been presented several times with the problem of how to determine when such injuries occur. It is necessary to fix a date of injury in order to determine, for example, when the statute of limitations begins to run, what the employee’s compensation rate should be, and, as in this case, which of two succeeding employers or insurance carriers must bear the liability for the employee’s claim.

We have held that for purposes of determining when the one-year statute of limitations begins to run, the date of a gradually-occurring injury is the date the employee becomes unable to work. Lawson, 944 S.W.2d at 343; Reed, 350 S.W.2d at 69-70. This “last day worked” rule operates to “fix a date certain when the employee knows or should know that he or she sustained a work-related injury so that workers with gradual injuries will not lose the opportunity to bring claims.” Bone v. Saturn Corp., 148 S.W.3d 69, 73 (Tenn. 2004).

We have also applied the last day worked rule to determine the question at issue in this case, i.e., which of two succeeding insurers or employers is hable for payment of a claim. In Barker, we held that because the employee’s carpal tunnel syndrome grew progressively worse with “new trauma ... each day at work,” the date of injury should be fixed as the date the employee was finally prevented from working. 805 S.W.2d at 376.

We have recently clarified, however, that the last day worked rule does not apply when the employee provides actual notice of the injury to the employer, because “[i]n that event, there is no question that the employee knows the work-related nature of his or her injury; thus there is no reason to use another date.” Bone, 148 S.W.3d at 73-74.

Application to Mahoney’s Injury

Here, the record establishes that Maho-ney first gave notice of her injury to her employer, Boatmen’s Bank, in June of 1996. Mahoney testified that she reported the injury to the benefits manager at Boatmen’s Bank in June 1996 and that she was first examined for carpal tunnel in June 1996. Thus, because Mahoney provided actual notice to her employer, “there is no question that [Mahoney knew] the work-related nature” of her injury, and “there is no reason to use another date.” Bone, 148 S.W.3d at 73-74. Mahoney suffered a compensable accidental injury in June of 1996, while employed at Boatmen’s Bank.

At the time of Mahoney’s injury, Boatmen’s Bank was her employer, and Firemen’s Fund was the insurance carrier. Thus, Boatmen’s Bank and Fireman’s Fund should be hable for the claim. Unfortunately, however, Mahoney voluntarily dismissed Boatmen’s Bank and Firemen’s Fund on January 3, 2000, and did not recommence her suit within the one-year window provided by the Savings Statute, Tennessee Code Annotated section 28-1-105(a) (2000).

We note that even if the last day worked rule did apply in this case, Mahoney also testified that she first missed work due to her injury in June of 1996 and that she was on short-term disability leave from work for three months between June and September of 1996. Although she testified that she was not diagnosed with carpal tunnel syndrome until September of 1996, she first missed work due to her work-related injury in June of 1996. Thus, Ma-honey was a Boatmen’s Bank employee on the date that the injury finally prevented her from working; under either the notice rule or the last day worked rule, Maho-ney’s injury occurred on Boatmen’s watch.

Last Injurious Injury Rule

Our determination that Mahoney’s injury first occurred while employed by Boatmen’s Bank does not end the inquiry, however. Mahoney argues that this case is controlled by the “last injurious exposure” rule and that, because she was last exposed to the working conditions leading to her disability while at NationsBank, Nati-onsBank should be responsible for paying her permanent disability.

The Workers’ Compensation Act provides that, in the case of occupational disease, the employer responsible for the “last injurious exposure” is responsible for the employee’s compensation. TenmCode Ann. § 50-6-304 (1999). Although carpal tunnel syndrome is not an occupational disease, in cases of accidental injuries, such as this one, a similar rule applies. Generally termed the “last injurious injury” rule, the rule operates to place liability for an employee’s disability on the last employer if working conditions at the last employer aggravated the employee’s preexisting injury. Baxter v. Smith, 211 Tenn. 347, 364 S.W.2d 936, 942-43 (1962); see also Riley v. INA/AETNA Ins. Co., 825 S.W.2d 80, 81-82 (Tenn.1992).

The last injurious injury rule recognizes that because “[bjoth the employer and its insurance carrier take the employee as they find him,” there can be no apportionment of liability between a prior employer and the last employer. Bennett v. Howard Johnsons Motor Lodge, 714 S.W.2d 273, 278 (Tenn.1986).

Although never addressed by this Court, the Special Workers’ Compensation Appeals Panel has applied the last injurious injury rule to gradually-occurring injuries such as carpal tunnel syndrome. See, e.g., Falcon v. Gaylord Entm’t Co., No. M2000-02948-WC-R3-CV, 2001 WL 1557801 at *2 (Tenn.Workers Comp.Panel Dec.4, 2001); Wood v. Porter Cable Corp., No. W2000-01771-WC-R3-CV, 2001 WL 987148 at *5 (Tenn.Workers Comp.Panel Aug.20, 2001); Moore v. Liberty Mut. Ins. Co., No. 02S01-9806-CH-00056, 1999 WL 640251 at ⅜4 (TennWorkers Comp.Panel Aug.23, 1999). We find those opinions to be well-reasoned and hold that the last injurious injury rule does apply to gradually-occurring injuries.

To determine whether a subsequent employer is responsible for a gradually-occurring injury that began at a prior employer, we must consider whether the employee’s condition was aggravated or advanced due to working conditions at the second employer. Barker, 805 S.W.2d at 375; see also Moore, 1999 WL 640251 at *4. It is not enough that the employee continued to suffer from the effects of an injury while employed by a second employer; rather, to be compensable, there must be a progression of the employee’s injury. See Barker, 805 S.W.2d at 375. This requirement is consistent with the general requirement that there be a second accidental injury to trigger liability on the part of a second employer.

Application to Mahoney’s Injury

Here, the last injurious injury rule would operate to impose upon Nations-Bank liability for Mahoney’s injury had her injury progressed or been aggravated by the working conditions at NationsBank. The trial court held that Mahoney’s injury was a continuous injury and that Nations-Bank was responsible for her workers’ compensation benefits. The trial court did not make a specific finding that Mahoney’s injury progressed or was aggravated at NationsBank.

We disagree with the trial court’s conclusion because there is no evidence in the record that Mahoney’s injury progressed or was aggravated during her tenure with NationsBank. Dr. Jones, who treated Ma-honey in January and February of 1997, testified that there had been “no significant change” in Mahoney’s condition since July of 1996. He further testified that the carpal tunnel syndrome had not advanced in severity from July 1996 to January 1997. Dr. Boals agreed with the conclusion that the EMG performed in 1997 did not show any significant change in Mahoney’s condition as diagnosed in 1996. Moreover, Mahoney herself did not testify that her condition progressed while at Nations-Bank. When asked if her wrist was “getting better, worse, [or] staying the same” at the beginning of 1997, she answered only that she was “still having trouble with my wrists” at that time. This scant testimony, combined with the opinion of both testifying physicians that Mahoney’s condition did not deteriorate while at Nations-Bank, leaves us with the inescapable conclusion that, although Mahoney continued to suffer the effects of her original injury while at NationsBank, she did not suffer a compensable progression or aggravation of that injury while at NationsBank. The compensable injury occurred at Boatmen’s Bank, which was voluntarily dismissed from this case. In the absence of any evidence of a progression or aggravation in Mahoney’s carpal tunnel syndrome during her employment with NationsBank, Nati-onsBank cannot be held liable for her workers’ compensation benefits.

CONCLUSION

After reviewing the record and applicable authority, we conclude that the trial court erred in awarding benefits payable by NationsBank. Accordingly, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion. Costs of this appeal are taxed to the appellee, Terry Ruddle Mahoney, for which execution may issue if necessary.

      . At the time of the trial, the plaintiff identified herself as Terry Lynn Harvey, but because her case remained captioned Terry Ruddle Mahoney, that is how we refer to her in this opinion.

      . The record does not reveal whether the delay in this case was due to the inaction of counsel, of the trial court, or both. The Legislature has directed that workers' compensation cases be expedited by giving the cases "priority over all cases on the trial and appellate dockets.” Tenn.Code Ann. § 50-6-225(f)(1) (1999). Additionally, this Court has adopted internal procedures to expedite the review and disposition of workers’ compensation cases. In our view, a delay of more than six years from the initial injury, and a delay of over four years in bringing the case to trial from the time of the complaint, is simply inexcusable.

      . Although the agreement purported to release NationsBank from all claims including workers’ compensation, an employer may not contract to avoid its workers’ compensation liability. Tenn.Code Ann. § 50-6-114 (1999); see also Fink v. Caudle, 856 S.W.2d 952, 959 (Tenn. 1993) ("Employers are prohibited by law from making any agreement, contract, rule, regulation or other device which would operate to extinguish or reduce its obligations under the Workers’ Compensation Law.”).


author: JANICE M. HOLDER, J.,

text:
    Jackie BOSTIC v. Paul DALTON, et al.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 8, 2004 Session.
    Jan. 7, 2005.

      James Franklin Logan, Jr., Cleveland, Tennessee, for the Plaintiff-Appellant, Jackie Bostic.
    Sheridan C. Randolph, Cleveland, Tennessee, for the Defendant-Appellees, Paul Dalton and Delicia L. Dalton.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., WILLIAM M. BARKER, J., and J.S. DANIEL, Sp.J. joined. E. RILEY ANDERSON, J., not participating.

In this workers’ compensation appeal, we must determine whether the appellee, a father who supervised the construction of his daughter’s residence, is required to pay workers’ compensation benefits to the appellant, the employee of a subcontractor who was injured during the construction of the residence. We hold that the father is an uncompensated agent of the owner and therefore falls within the owner’s exemption of Tennessee Code Annotated section 50 — 6—113(f) (1999). Thus, we adopt the conclusions of the Special Workers’ Compensation Appeals Panel affirming the judgment of the trial court.

In 1999, Delicia Dalton (“Ms. Dalton”) authorized Paul Dalton (“Dalton”), her father, to assist her in the construction of a residence on property she owned. Dalton did not charge Ms. Dalton for his labor and did not receive any compensation. Dalton hired his nephew, Michael Evans (“Evans”), to frame Ms. Dalton’s house. Evans, a subcontractor and owner of Ocoee Construction Company, employed the appellant, Jackie Bostic (“Bostic”), to assist in framing the house. As Bostic was working on the house, he fell from an unstable, eight-foot wall onto a “pile of 2x4s.” As a result of the accident, Bostic fractured his tibia and fibula and suffered injuries to his left ankle and foot.

Bostic brought an action against Dalton and Ms. Dalton pursuant to the Tennessee Workers’ Compensation Act. At the conclusion of the trial, the trial court denied Bostic relief, finding that Bostic was not an employee of Ms. Dalton. The trial court further found Dalton was not liable under the Workers’ Compensation Act as “the statute imposing liability on contractors was not intended to apply to the circumstances which were presented in this case.” The trial court noted that Dalton did not receive any compensation for his efforts, even though he obtained the necessary permits, supervised construction, and employed subcontractors.

The Special Workers’ Compensation Appeals Panel affirmed the trial court’s judgment holding that Ms. Dalton, as the owner, was exempt from the provisions of the Workers’ Compensation Act pursuant to Tennessee Code Annotated section 50-6-113(f)(1) (1999). This finding was not appealed. The Panel further found that Dalton was his daughter’s agent and thus was also exempt under section 50-6-113(f)(l). Bostic filed a motion for review of this issue pursuant to Tennessee Code Annotated section 50-6-225(e)(5)(B). We granted full Court review.

ANALYSIS

Generally, an employee who is injured in an accident while in the course of employment is limited to recovering workers’ compensation benefits from the employer. See, e.g., Tenn.Code Ann. § 50-6-103 (1999). Thus, coverage under the Tennessee Workers’ Compensation Act primarily depends upon the existence of an employer-employee relationship. Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 175 (Tenn.2001). The legislature has extended this relationship to principal contractors, intermediate contractors, and subcontractors. See Tenn.Code Ann. § 50-6-113 (1999).

Pursuant to Tennessee Code Annotated section 50-6-113(a) (1999), “[a] principal, or intermediate contractor, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal, intermediate contractor, or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.” Furthermore, the injury must have occurred “on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under the principal contractor’s control or management.” TenmCode Ann. § 60-6-113(d) (1999).

The Act essentially creates “statutory employers” when injured workers are otherwise unable to recover workers’ compensation benefits from their immediate employers. Murray, 46 S.W.3d at 175. Pursuant to Tennessee Code Annotated section 50-6-113(a) (1999), a principal contractor is liable for uninsured work-related injuries sustained by its subcontractor’s employees. See Brown v. Canterbury Corp., 844 S.W.2d 134, 137 (Tenn.1992). This provision prevents employers from contracting out ordinary business activities in an effort to avoid workers’ compensation liability. Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 951 (Tenn. 1985). This section further protects employees of uninsured subcontractors by imposing ultimate liability upon the “presumably responsible principal contractor.” Brown, 844 S.W.2d at 136. The principal contractor can carefully choose subcontractors and insist upon appropriate workers’ compensation coverage. Id.

In 1997, the legislature amended Tennessee Code Annotated section 50-6-113 by adding subsection (f), requiring any person engaged in the construction industry to carry workers’ compensation insurance. See TenmCode Ann. § 50-6-113(f) (1997). At the time of Bostic’s injury, the provision stated that:

[A]ny person engaged in the construction industry, including principal contractors, intermediate contractors, or subcontractors, shall be required to carry workers’ compensation insurance.... In addition, the provisions of this subsection shall not apply to any person building a dwelling or other structure, or performing maintenance, repairs, or making additions to structures, on the person’s own property for the person’s own use and for which the person receives no compensation.

Id. at (f)(1) (1999). “A person engaged in the construction industry” includes

any person or entity who undertakes to, attempts to, or submits a price or bid or offers to construct, supervise, superintend, oversee, schedule, direct, or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down, or furnishing labor to install material or equipment for any building, ... housing, ... or any other construction undertaking.

Id. at (f)(3) (1999).

The determination of whether Dalton qualifies as a “person engaged in the construction industry” pursuant to Tennessee Code Annotated section 50-3-113(f) (1999) involves an issue of statutory construction. We review questions of law, including issues of statutory construction, de novo without a presumption of correctness. Perry v. Sentry Ins. Co., 938 S.W.2d 404, 406 (Tenn.1996). When construing a statute, we must “ascertain and give effect to the legislative intent without restricting or expanding the statute’s intended meaning or application.” Galloway v. Liberty Mut. Ins. Co., 137 S.W.3d 568, 570 (Tenn. 2004). If the language of the statute is unambiguous, we must apply its plain and ordinary meaning. Id. In interpreting workers’ compensation laws, we must consider that “these laws should be rationally but liberally construed to promote and adhere to the Act’s purposes of securing benefits to those workers who fall within its coverage.” Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 925 (Tenn.1980) (citation omitted).

The evidence presented at trial establishes that Dalton obtained and signed the necessary permits, chose and maintained communication with the subcontractors, supervised the plumbing activities, collected information on each laborer’s hours, and gave general directions on the progression of construction. Pursuant to the clear and unambiguous language of the statute, Dalton qualifies as “a person engaged in the construction industry.” See Tenn.Code Ann. § 50-6-113(f)(3) (1999).

Dalton, however, submits he is shielded from liability pursuant to section 50 — 6—113(f)(1), which provides an exemption to owners such as Ms. Dalton. To qualify under the ownership exemption, (1) the construction must be performed “on the person’s own property for the person’s own use,” and (2) the person must not receive compensation. Tenn.Code Ann. § 50-6-113(f)(l) (1999). The undisputed evidence establishes that Dalton was not compensated for his efforts, thus satisfying the statute’s second element. Therefore, we must determine whether Dalton meets the first element of the ownership exemption.

Dalton argues that he is the agent of Ms. Dalton and should be afforded the same protection under the Workers’ Compensation Act. An agency “includes every relation in which one person acts for or represents another.” White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723 (Tenn.2000) (citation omitted). The existence of an agency relationship is not de-pendant upon a contract, an explicit agreement, or an understanding between the parties. Id. at 724. Rather, the existence of an agency relationship “ ‘is a question of fact under the circumstances of a particular case’ ” based upon an examination of the agreements among the parties or of the parties’ conduct. Id. (quoting McCay v. Mitchell, 62 Tenn.App. 424, 463 S.W.2d 710, 715 (1970)).

Ms. Dalton is a person who was building a dwelling “on [her] own property for [her] own use.” See Tenn.Code Ann. § 50-6-113(f)(1) (1999). To accomplish her purpose, she enlisted Dalton’s help, delegated her authority to Dalton, and acquiesced in his decisions and actions during the construction of her residence. Dalton clearly was acting as Ms. Dalton’s agent in overseeing the construction of her residence.

Although the definition of agency encompasses virtually any relationship between an owner and a principal contractor, we note that the ownership exemption requires that the agent not be compensated. Dalton was acting as an agent for a person, Ms. Dalton, who was building a structure on her own property for her own use. Neither the owner nor her agent received compensation. Therefore, Dalton satisfies the requirements of the ownership exemption provided in Tennessee Code Annotated section 50-6-113(f)(l) (1999) and is not subject to liability under the provisions of the Workers’ Compensation Act.

CONCLUSION

We conclude that although Dalton is “a person engaged in the construction industry,” he falls within the ownership exemption provided in Tennessee Code Annotated section 50-6-113(0(1) (1999) and thus is not subject to the provisions of the Workers’ Compensation Act. Accordingly, we adopt the conclusions of the Special Workers’ Compensation Panel affirming the trial court’s judgment.

Costs of appeal are taxed to the appel-lee, Jackie Bostic and his surety, for which execution may issue if necessary.

E. RILEY ANDERSON, J., not participating.

      . Dalton also contends that Bostic is a casual employee and thus is not entitled to workers’ compensation benefits. However, because we have concluded that Dalton is exempt from the provisions of the Workers’ Compensation Act, we need not reach this issue.


author: J.S. “STEVE” DANIEL, Sp.J.,

text:
    Angela D. (Fezell) TAYLOR v. Douglas FEZELL.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 9, 2004 Session.
    Jan. 14, 2005.

      ■ John P. Chiles, Kingsport, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the appellant, Douglas W. Fezell.
    C. Dwaine Evans, Morristown, Tennessee, for the appellee, Angela D. (Fezell) Taylor.
   OPINION

J.S. “STEVE” DANIEL, Sp.J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether the retained earnings of an S corporation should be treated as income to the sole or majority shareholder of the corporation for the purpose of calculating child support in accordance with the Tennessee Child Support Guidelines. We conclude that absent a showing that the retained earnings are excessive or that an obligor is actually manipulating his or her income, the retained earnings of an S corporation should not be imputed as income to the sole or majority shareholder in calculating a child support obligation. Because there was no showing in this case that the retained earnings were excessive or that the obli-gor-father manipulated the funds of the S corporation to reduce his child support obligation, we hold that the trial court and the Court of Appeals erred by imputing to him as income the company’s retained earnings. Further, we hold that the lower courts erred by failing to include the economic value of the obligor-father’s company ear in its calculation of income. Finally, we hold that the trial court and the Court of Appeals erred by not granting the obligee-mother’s petition to have the obligor pay her attorney’s fees in this cause. Based on the foregoing, we reverse the judgment of the Court of Appeals and remand to the trial court for a determination of child support that is consistent with this opinion and for a determination of attorney’s fees.

I. Facts and Procedural History

On June 14, 1986, Douglas W. Fezell (Mr. Fezell) and Angela Daniels (Mrs. Fe-zell) were married. The couple had two children: a daughter born on May 30, 1993, and a son born on April 15, 1995. The couple divorced in 1999. In their Marital Dissolution Agreement (MDA), Mrs. Fezell was designated as the primary residential custodian of the two minor children. The MDA also provided that Mr. Fezell was to have visitation time greater than the standard amount contemplated by the Tennessee Child Support Guidelines. In consideration of Mr. Fezell’s additional visitation and the establishment of a trust fund for the children, the parties mutually agreed that Mr. Fezell would pay child support in the amount of $1,000.00 per month until July 31,1999, with an increase to $1,300.00 in August 1999. The MDA also set forth the terms of the trust agreement and provided a method to calculate Mr. Fezell’s contribution to the trust.

Pursuant to the Tennessee Child Support Guidelines, Mr. Fezell’s child support obligation was based, in part, on his income from Professional Vending Services (PVS). At the time of the divorce, Mr. and Mrs. Fezell were the sole shareholders of PVS, each owning a one-half interest. The parties agreed in the MDA that Mr. Fezell would continue to run PVS as the sole shareholder and president and that he would pay Mrs. Fezell $310,000.00 in exchange for her one-half interest in the company. Mr. Fezell completed the purchase of this stock and was the sole shareholder of the corporation at the time of the present litigation.

PVS buys, installs, and services vending machines and auxiliary equipment in various commercial locations. This business is very capital intensive, and to be competitive, PVS must purchase and maintain state-of-the-art vending equipment for its commercial users. PVS, from its inception until 2001, was registered with the State as an S corporation. An S corporation’s income passes through that corporate entity to the individual shareholders in proportion to their respective stock ownership. This passing through of income takes place for federal income tax purposes, regardless of whether the earnings of the corporation are retained to enhance the corporation’s capital position. Thus, the shareholders of an S corporation are required to pay taxes on their apportioned shares of the corporation’s earnings, regardless of the actual sums they are paid. In 2001, following the divorce, Mr. Fezell changed the corporate status of the company from an S corporation to a C corporation. This change in corporate status resulted in the removal from Mr. Fezell’s income for tax purposes of corporate earnings that had been retained by the corporation.

The record also demonstrates that Mr. Fezell has been furnished a leased Lexus automobile by PVS and has retained the full use of the vehicle, both during business and nonbusiness hours. PVS has been paying a monthly lease payment of $1,200.00 for Mr. Fezell’s automobile.

On August 1, 2001, Mr. Fezell filed a post-divorce action seeking to increase his parenting time. He also sought a reduction in his child support payments and a determination that the trust agreement in the MDA be declared void. Mrs. Fezell responded with a counter-petition, asserting that Mr. Fezell had willfully failed and refused to fund the trust and that he had failed to pay the proper amount of child support in accordance with the Tennessee Child Support Guidelines. Additionally, Mrs. Fezell requested that Mr. Fezell be ordered to pay her attorney’s fees in this cause. The trial court conducted a hearing on the various claims of the parties.

The trial court upheld the validity of the trust established for the minor children, found that Mr. Fezell had failed to properly calculate the trust contributions, and entered a judgment for those past-due contributions. The trial court denied Mr. Fe-zell’s request for additional parenting time and Mrs. Fezell’s request for attorney’s fees. Further, the trial court increased Mr. Fezell’s child support payment to $1,576.58 per month.

In calculating Mr. Fezell’s child support obligation, the trial court first determined his income. In so doing, the trial court imputed to Mr. Fezell PVS’s retained earnings as an S corporation. Although the court acknowledged that PVS was a capital-intensive business, it concluded that Mr. Fezell “maintained] the ability and authority to control his annual salary, with the potential to manipulate his income by allowing the company to accumulate profits through retained earnings.” The trial court also found that Mr. Fezell converted PVS from an S corporation to a C corporation for legitimate business purposes and on the advice of his accountant.

The trial court then averaged Mr. Fe-zell’s income for the three years prior to trial, using Mr. Fezell’s 1999, 2000, and 2001 individual federal income tax returns. The 1999 and 2000 returns showed the pass-through income of PVS which had been attributable to Mr. Fezell as sole shareholder of an S corporation. The 2001 tax return reflected wages paid to Mr. Fezell by the corporation as a C corporation as shown by a W-2 form. Having totaled these three incomes, the court divided the total sum by three, resulting in an average income of $107,433.00 per year for the purpose of the Child Support Guidelines. Applying the respective percentage of 32% to that obligation, the trial court arrived at a child support amount of $2,012.00 per month. See Tenn. Comp. R. & Regs. 1240-2-4^.03(5) (1994). Thereafter, the trial court reduced this sum to reflect the excess visitation exercised by Mr. Fezell and concluded that the appropriate child support after a credit of $435.42 was $1,576.58 per month. The trial court did not consider the economic benefit of Mr. Fezell’s personal use of a company car in its child support calculation.

Mr. Fezell appealed, and the Court of Appeals affirmed the trial court’s decision. Mr. Fezell now appeals the Court of Appeals’ decision, arguing that the trial court erred by imputing to him the retained earnings of his S corporation for purposes of calculating his child support obligation. Mrs. Fezell responds that the trial court properly imputed to Mr. Fezell as income the retained earnings of the corporation. She further argues that the trial court erred in calculating Mr. Fezell’s child support obligation based on parenting time and that she should have been granted attorney’s fees in this cause.

II. Standard of Review

Whether the retained earnings of an S corporation can be imputed to the owner of the company in calculating a child support obligation is a question of law. Accordingly, our review is- de novo with no presumption of correctness accorded to the courts below. State v. Yoreck, 133 S.W.3d 606, 609 (Tenn.2004).

III. Analysis

A. Child Support Calculation

In this appeal, Mr. Fezell contends that the trial court erred in calculating his child support obligation by imputing to him as income the retained earnings from his S corporation. Specifically, he contends that such earnings should be imputed as income for child support purposes only in cases in which the retention of earnings is excessive or there is evidence that the obligor is actually manipulating his or her income. We agree.

Awards of child support are governed by the Child Support Guidelines promulgated by the Tennessee Department of Human Services Child Support Services Division. Tenn.Code Ann. § 36-5-101(e)(2) (2001). These guidelines, when properly applied, create a rebuttable presumption of the proper award in child support cases. Tenn. Comp. R. & Regs. 1240-2-4-02(7) (1994). If the trial court determines that the evidence is sufficient to rebut this presumption, it must make a “written or specific” finding of the amount that would be required under the guidelines and the reasons why application of the child support guidelines would be unjust or inappropriate in a particular case. Id.

The child support guidelines provide that child support should normally be based on a flat percentage of the obligor’s net income, depending on the number of children to be supported. Id. at -.03(2). Net income is calculated by subtracting appropriate deductions from gross income. Id. at -.03(4)(b). “Gross income” is defined as “all income from any source” including salaries, bonuses, dividends, interest, annuities, and income from self-employment. Id. at -,03(3)(a)(l). If those sources of income vary, the guidelines specify that these amounts should be averaged and added to the obligor’s fixed salary. Id. at -.03(3)(b). These guidelines, when applied to an obligor whose income is derived from a salary and an occasional bonus or dividend, yield an easily quantitated child support amount. Once the obligor’s income has been determined and the Child Support Guidelines have been applied, the calculation of child support is made with certainty, predictability, and precision.

Although achieving such precision is possible when calculating the child support owed by a salaried obligor, the calculation is much more difficult and much less precise when the obligor is self-employed. See Koch v. Koch, 874 S.W.2d 571, 576 (Tenn.Ct.App.1993). The- Child Support Guidelines therefore provide a different method for calculating a self-employed ob-ligor’s income. In the self-employed obli-gor’s situation, the guidelines require the trial court to consider all income of the obligor parent, reduced only by reasonable expenses to produce the income. Income from self-employment “includes income from business operations and rental properties, etc., less reasonable expenses necessary to produce such income.” Tenn. Comp. R. & Regs. 1240-2-4-.03(3)(a)(2) (1994).

These self-employment guidelines are fashioned in such a way as to authorize the trial court to address the potential of a self-employed obligor to manipulate income for the purpose of avoiding payment of child support. Courts have recognized that a self-employed obligor has the opportunity ‘“to manipulate his reported income by either failing to aggressively solicit business or by inflating his expenses, thereby minimizing his income.’” Mitts v. Mitts, 39 S.W.3d 142, 148 (Tenn.Ct.App.2000) (quoting Sandusky v. Sandusky, No. 01A01-9808-CH-00416, 1999 WL 734531, at *4 (Tenn.Ct.App. Sept.22, 1999)). Based on this reasoning, in certain situations, a court may impute income to a sole owner of a business. Id.

The Tennessee Child Support Guidelines seek to provide guidance by creating a presumptive child support obligation based on the net realized income of both employed and self-employed obligors. A child support obligor who is the sole or majority shareholder of a closely-held corporation does not fit particularly well into either of the above two child support guideline models. Such a shareholder possesses power over income that an ordinary corporate employee does not possess. On the other hand, a corporation which is not a sham is considered a separate entity, the existence of which is dependent on its compliance with the formalities of corporate law and its capitalization for maintaining its credit-worthiness. This separate identity status is characterized by a capital structure which is sufficient to meets its ordinary expenses and to provide the capitalization necessary for its business purpose.

Nevertheless, a majority shareholder in a corporation is similar to a sole proprietor in that the potential for manipulation of income exists. After careful consideration of this issue of first impression, we conclude that for the retained earnings of a corporation to be imputed to the sole or majority shareholder of a corporation, there must be a showing that those retained earnings are excessive or that the income is actually being manipulated. This approach requires trial courts to recognize the independent entity status of a corporation that is properly run by its shareholders. This recognition will require child support determinations to be based on the obligor’s actual income and benefits while protecting the corporate entity’s existence and the development of capitalization necessary to meet its legitimate business purposes.

In determining whether the earnings of the obligor’s corporation are excessive, the trial court should consider the level of retained earnings or capitalization maintained in the closely-held corporation before the divorce occurred. Obviously, the pre-divorce level of corporate capitalization and the practice of retaining corporate income for future capitalization provides a baseline for the expectations of the obligor’s income and a recognition of the corporate capitalization necessary for future business activity. Expert testimony may be relevant to prove the level of retained earnings that are appropriate for the corporation to carry on its intended purpose, and the court should consider post-divorce corporation activities, particularly any unexplained increases or reductions of capitalization or retained earnings.

In order to determine whether a sole or majority shareholder is manipulating income, the court should closely examine personal expenses and economic benefits provided to the obligor by the corporation and should include the value of those extraordinary benefits in the ob-ligor’s income calculation. The trial court should consider any other factor that bears on the issue of whether the obligor is manipulating his or her income in an effort to avoid the proper payment of child support.

In this case, the trial court was not aided by the benefit of this decision in evaluating the obligor’s income. As a consequence, the trial court averaged the federal taxable income for the years 1999, 2000, and 2001 in determining the obligor’s income for the purpose of calculating child support. In this averaging process, the trial court imputed the retained earnings of PVS to Mr. Fezell in 1999 and 2000, which may have distorted the obligor’s income for this calculation. Because there was no showing that PVS’s retained earnings were excessive or that Mr. Fezell actually manipulated his income to avoid paying child support, the trial court erred in imputing the retained earnings of his corporation to him for the purpose of determining his child support obligation.

Further, in computing Mr. Fe-zell’s income for child support purposes, the trial court failed to consider the economic value of his company car. The record established that PVS has provided Mr. Fezell with a leased Lexus automobile. He has had full use of this vehicle, both during business and nonbusiness hours. The child support guidelines provide that “ ‘[i]n kind’ remuneration must also be imputed as income, i.e., fringe benefits such as a company car.” Tenn. Comp. R. & Regs. 1240-2M-.03(3) (1994). Thus, the economic value of the private use of the car during nonbusiness hours should also have been considered as part of the obli-gor’s income.

Mrs. Fezell next contends that the trial court erred in reducing Mr. Fezell’s child support obligation based on his parenting time. Specifically, she contends that the trial court should have calculated parenting time in hours rather than days. The evidence does not preponderate against the trial court’s calculation of parenting time.

B. Attorney’s Fees

Finally, Mrs. Fezell argues that the trial court erred by refusing to grant her attorney’s fees in this cause. In denying attorney’s fees, the trial court stated that “no contractual or statutory duty of payment of [attorney’s fees] exists.” The Court of Appeals found no abuse of discretion by the trial court.

Mrs. Fezell contends that Mr. Fezell has both a statutory duty and a contractual duty to pay her attorney’s fees in this cause. In Tennessee, courts follow the American Rule, which provides that litigants must pay their own attorney’s fees unless there is a statute or contractual provision providing otherwise. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn.2000). “The allowance of attorney’s fees is largely in the discretion of the trial court, and the appellate court will not interfere except upon a clear showing of abuse of that discretion.” Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.1995).

Mrs. Fezell contends that Tennessee Code Annotated section 36-5-103(c) (2001) requires that Mr. Fezell pay her attorney’s fees in this cause. That statute provides,

The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

Id. This Court has held that “[i]n cases involving the custody and support of children, ... it has long been the rule in this State that counsel fees incurred on behalf of minors may be recovered when shown to be reasonable and appropriate.” Deas v. Deas, 774 S.W.2d 167, 169 (Tenn.1989). Although “[tjhere is no absolute right to such fees, ... their award in custody and support proceedings is familiar and almost commonplace.” Id. at 170. In awarding attorney’s fees pursuant to section 36-5-103(c), the trial court may consider proof of inability to pay, but such consideration will not be controlling. Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn.Ct.App.1992).

Further, the MDA in this case provides that “[sjhould either party incur any expenses or legal fees as a result of the breach of any portion of this Marital Dissolution Agreement by the other party, the defaulting party shall be responsible for all reasonable attorney’s fees and suit expenses to the non-defaulting party.” Mrs. Fezell argues that because the trial court found that Mr. Fezell failed to properly fund the trust, he was in breach of the MDA. We agree.

In this case, the father filed the original petition in an effort to modify his parenting time, to decrease his child support payments, and to have a trust provision in the MDA declared void. Because Mr. Fezell sought to have his parenting time altered and his child support obligation decreased, we believe that both Tennessee Code Annotated section 36-5-103(c) and the contractual agreement between the parties in the MDA provide a basis to award attorney’s fees to the successful litigant. Therefore, we conclude that the trial court erred in not granting Mrs. Fezell’s attorney’s fees for the initial litigation. With respect to attorney’s fees associated with this appeal and any rehearing associated with our remand, we leave determination to the sound discretion of the trial court which should remain mindful of contractual and statutory authority for awarding attorney’s fees.

IV. Conclusion

We conclude that the trial court erred by imputing the retained earnings of PVS as income to Mr. Fezell for the purpose of calculating his child support obligation and by failing to include the benefit of Mr. Fezell’s personal use of a company car in the income calculation. Additionally, we conclude that the trial court erred by failing to grant Mrs. Fezell attorney’s fees in this cause. Accordingly, the judgment of the Court of Appeals is reversed. This case is remanded to the trial court for a determination of Mr. Fezell’s child support obligation that is consistent with this opinion and a determination of the proper amount of attorney’s fees. The costs of this appeal are divided equally between the parties, Angela D. (Fezell) Taylor and Douglas Fezell, and their sureties, for which execution may issue if necessary.

      . Although Angela Fezell has remarried and taken the surname "Taylor,” we will refer to her in this opinion as Mrs. Fezell.

      . This case involves the Tennessee Child Support Guidelines which were in effect when the events referred to in this case took place. We note, however, that new Income Shares Child Support Guidelines are effective January 18, 2005.