author: WILLIAM C. KOCH, JR., J., GARY R. WADE, J.,

text:
    Ana R. PADILLA v. TWIN CITY FIRE INSURANCE COMPANY.
    Supreme Court of Tennessee, at Nashville.
    June 3, 2010 Session.
    Oct. 6, 2010.

      H. Tom Kittrell, Jr. and T.J. Cross-Jones, Nashville, Tennessee, for the appellant, Ana R. Padilla.
    Blakeley D. Matthews and Brian W. Holmes, Nashville, Tennessee, for the ap-pellee, Twin City Fire Insurance Company.
   OPINION

WILLIAM C. KOCH, JR., J.,

delivered the opinion of the Court,

in which JANICE M. HOLDER and SHARON G. LEE, JJ., joined.

This appeal involves the workers’ compensation liability of an employer for the unsolved fatal shooting of an employee on the employer’s premises. The employee’s surviving spouse filed suit in the Chancery Court for Davidson County seeking death benefits under Tennessee’s Workers’ Compensation Law. Following a bench trial, the trial court denied the widow’s claim for workers’ compensation benefits. The court concluded that the employee’s death was the result of a neutral assault and that the “street risk” doctrine was inapplicable because the employer’s premises were not open to the public. On appeal, the Special Workers’ Compensation Appeals Panel declined to presume that neutral assaults on an employer’s premises were compensable and affirmed the trial court’s judgment. We granted the surviving spouse’s petition for full court review. Like the Special Workers’ Compensation Appeals Panel, we decline to engraft a non-statutory presumption favoring compensability in cases involving neutral assaults on the employer’s premises. Accordingly, we affirm the judgment of the Special Workers’ Compensation Appeals Panel and the trial court.

I.

Jose Sanchez began working as an apprentice mill worker for Xelica LLC in 2001. Xelica manufactured windows and doors, and its shop was located in one of Nashville’s light industrial areas near 1-65 and Herschel Greer Stadium. Mr. Sanchez was generally the first employee to arrive at the shop each morning, and the owner of the business had given him permission to open the building and begin working.

On the morning of July 13, 2007, Mr. Sanchez arrived at the shop at 4:42 a.m. George C. Moolman, the owner of the business, arrived at approximately 6:00 a.m. While he saw Mr. Sanchez’s automobile in the parking lot, Mr. Moolman did not see Mr. Sanchez at his workstation when he entered the shop. Mr. Moolman began to look for Mr. Sanchez when he noticed that Mr. Sanchez’s customary music was not playing and that the machines were not running. He discovered Mr. Sanchez lying near the rear shop door with two gunshot wounds in his chest and two in his head. He also saw a pipe laying across Mr. Sanchez’s body. Mr. Moolman called the police.

Detective David Achord and Detective Brad Corcoran were dispatched to Xelica to investigate Mr. Sanchez’s murder. They discovered bullet holes and damage to the lock on the interior of the shop door. They ascertained from Mr. Moolman that nothing had been stolen, including the petty cash which was found undisturbed in the office. Mr. Sanchez’s personal effects were also undisturbed. The officers recovered his wallet, credit cards, and car keys from his person. Neighboring property owners reported hearing gunshots between 5:10 and 5:30 a.m., but no one reported seeing anything suspicious.

A subsequent police investigation uncovered little additional information. The detectives found no indication that Mr. Sanchez was involved in criminal activity or that he had any gang affiliations. The results of laboratory testing of DNA found at the crime scene were inconclusive. Although the authorities identified two “persons of interest,” no charges were ever filed, and no arrests were made. Eventually, the case was turned over to the Metropolitan Police Department’s homicide cold case unit.

On November 27, 2007, Ana R. Padilla, Mr. Sanchez’s widow, filed suit in the Chancery Court for Davidson County seeking to recover death benefits under Tennessee’s Workers’ Compensation Law for herself and her daughter. Xelica and its workers’ compensation insurance carrier, Twin City Fire Insurance Company (“Twin City”), filed an answer admitting only that Mr. Sanchez had been killed intentionally and denying that either Ms. Padilla or her daughter were entitled to workers’ compensation benefits.

During the September 24, 2008 trial, Ms. Padilla presented evidence intended to establish that Xelica’s shop was in a high-crime area. This evidence included the testimony of an owner of a nearby business who had installed a razor wire fence, retained an outside security guard to be on-call, and obtained a handgun permit after his business was burglarized over twenty times. Ms. Padilla also called an employee of the Metropolitan Police Department who testified that nine forced entry burglaries, three non-forced entry burglaries, and one murder had been committed in the area between 2005 and 2007. Finally, Mr. Moolman testified he had considered installing a security fence after Xelica had been burglarized twice.

At the close of Ms. Padilla’s case, Twin City moved for a directed verdict on three grounds. First, it pointed out that the neighboring business that frequently had been burglarized sold truck parts, had a visible storefront, and was open to the public; while Xelica was not open to the public and did not deal in goods that attracted burglars. Second, it pointed out that Xelica’s two burglaries had been “inside jobs” and that the employees responsible for these crimes had been fired, which is why Mr. Moolman eventually decided not to install a security fence. Third, it emphasized that nothing had been taken from Xelica or Mr. Sanchez when he was fatally shot. The trial court denied the motion for directed verdict.

The trial court filed its memorandum opinion and order on October 3, 2008. The court concluded that “the greater weight and preponderance of the evidence does not establish that the motive for the shooting was a burglary of Xelica.” It also concluded that no evidence had been presented that the crime was connected to Mr. Sanchez’s private life. Accordingly, following the analysis in Wait v. Travelers Indemnity Co. of Illinois, 240 S.W.3d 220, 227 (Tenn.2007), the trial court concluded that the shooting of Mr. Sanchez was a “neutral assault” because there was no proof that it was related to a crime against Xelica or to a personal conflict with Mr. Sanchez. The trial court also declined to apply the “street risk” doctrine. The court reasoned that even though Xelica’s shop was located in an area with a “higher than average crime rate,” the business did not advertise to the public, did not attract the public, and was not frequented by the public. Based on these findings, the trial court dismissed Ms. Padilla’s complaint.

Ms. Padilla filed a notice of appeal pursuant to Tenn.Code Ann. § 50-6-225(e) (2008) on October 3, 2008. She presented the same arguments to the Special Workers’ Compensation Appeals Panel that she had presented to the trial court. The Appeals Panel observed that Ms. Padilla was, in effect, asking the panel to adopt the minority rule that in cases involving neutral assaults where the proof is inconclusive, the burden should be placed on the employer to prove that the assault was unrelated to the employee’s employment. The Appeals Panel declined to accept Ms. Padilla’s invitation. Rather, the Appeals Panel concluded that the burden of establishing compensability was on the worker or the worker’s survivors and that the evidence did not preponderate against the trial court’s findings of fact.

Ms. Padilla sought review of the Appeals Panel’s decision in accordance with Tenn. Code Ann. § 50-6-225(e)(5)(A)(ii). We agreed to hear this case in order to determine (1) whether the evidence preponderates against the trial court’s finding that the motive for the killing was not a burglary, (2) whether the evidence preponderates against the trial court’s finding that the street risk doctrine does not apply, and (3) whether Tennessee should recognize a non-statutory presumption in neutral assault cases that the injury is compensable.

II.

In workers’ compensation cases such as this one, this Court reviews a trial court’s factual findings “de novo upon the record ... accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.” TenmCode Ann. § 50-6-225(e)(2); Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn.2008). The statute requires us to conduct an in-depth examination of the lower court’s factual findings and conclusions. Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn.2007) (quoting Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn.1991)). While we must give considerable deference to the trial court’s findings of fact based on live testimony, Anderson v. Westfield Grp., 259 S.W.3d 690, 695 (Tenn.2008); Tryon v. Saturn Corp., 254 S.W.3d at 327, we need not give similar deference to findings based on documentary evidence such as depositions. Glisson v. Mohon Int’l, Inc./Campbell Ray, 185 S.W.3d 348, 353 (Tenn.2006); Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 322 (Tenn.2005) (citing Lang v. Nissan N. Am., Inc., 170 S.W.3d 564, 569 (Tenn.2005)). Once we have determined the facts, it is our responsibility to apply the law to those facts, attaching no presumption of correctness to the trial court’s conclusions of law. See generally Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826-28 (Tenn.2003) (interpreting a statute of limitations and applying it to the trial court’s factual findings).

III.

To be compensable under Tennessee’s Workers’ Compensation Law, an injury must both arise out of the work and occur in the course of employment. Wait v. Travelers Indem. Co. of Ill., 240 S.W.3d at 225; Blankenship v. American Ordnance Sys., LLS, 164 S.W.3d 350, 353-54 (Tenn.2005). These requirements are not synonymous. Anderson v. Westfield Grp., 259 S.W.3d at 695-96; Glisson v. Mohon Int’l, Inc./Campbell Ray, 185 S.W.3d at 353. The requirement that the injury “arise out of’ the work refers to the cause or origin of the injury; while the requirement that the injury occur “in the course of’ the work involves the time, place, and circumstances of the injury. Wait v. Travelers Indem. Co. of Ill., 240 S.W.3d at 225.

The parties in this case have not joined issue on whether Mr. Sanchez’s death occurred in the course of the work. They have focused solely on whether the fatal attack on Mr. Sanchez arose out of his employment. We have recognized the following three categories for assaults that occur at the workplace:

(1) assaults with an “inherent connection” to employment such as disputes over performance, pay or termination; (2) assaults stemming from “inherently private” disputes imported into the employment setting from the claimant’s domestic or private life and not exacerbated by the employment; and (3) assaults resulting from a “neutral force” such as random assaults on employees by individuals outside the employment relationship.

Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 771 (Tenn.1998) (footnote added). Assaults falling into the first category are compensable. Wait v. Travelers Indem. Co. of Ill., 240 S.W.3d at 227. Assaults falling into the second category are not. Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d at 771. The compensability of assaults falling into the third category “depend[s] on the facts and circumstances of the employment.” Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d at 771.

Ms. Padilla insists that the only reasonable conclusion to be drawn from the evidence is that Mr. Sanchez was killed during a “burglary gone wrong” and, therefore, that the fatal assault was inherently connected with Mr. Sanchez’s work. While the theory that Mr. Sanchez was killed during a burglary gone wrong is one of the reasonable conclusions supported by the evidence, it is not the only reasonable conclusion. The evidence can also be reasonably viewed to be inconsistent with a burglary. Xelica’s business is not the sort of enterprise that attracted outside burglaries. There is no evidence of an effort to break into the business. If anything, the evidence of the damage to the inside of the doors suggests a perpetrator who was attempting to escape, not one who was attempting to enter the premises. Finally, there is no evidence that anything was taken from Xelica or from Mr. Sanchez. When viewed in its entirety, the evidence could also permit a reasonable person to conclude that Mr. Sanchez was killed during an entirely random assault. Whatever the true motive of the assailant may have been, the evidence does not preponderate against the trial court’s finding that this was a neutral force assault.

IV.

Ms. Padilla, conceding that the lower courts correctly concluded that the assault that killed Mr. Sanchez was a neutral assault, also insists that the only reasonable conclusion to be drawn is that the “street risk” doctrine enables her to recover under Tennessee’s Workers’ Compensation Law even if Mr. Sanchez was killed as a result of a “neutral force” assault. Xeli-ca and Twin City respond that the facts in this case do not support an application of the “street risk” doctrine. We agree with Xelica and Twin City.

We first adopted the “street risk” doctrine in 1979 to offer guidance in an otherwise murky area of the law. In a case involving a truck driver who was shot by two assailants while entering his truck after lunch, we held that “the risks of the street are the risks of the employment, if the employment requires the employee’s use of the street.” Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 602 (Tenn.1979). Thus, the purpose of the “street risk” doctrine is to “provide[ ] the necessary causal connection between the employment and the injury” when “the employment exposes the employee to the hazards of the street.” Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d at 602.

The application of the “street risk” doctrine has now expanded to include employees whose work exposes them to the public. In a case involving an employee whose employer permitted her to work from a home office, we held:

When an employee suffers a “neutral assault” within the confínes of her employer’s premises — whether the premises be a home office or a corporate office — the “street risk” doctrine will not provide the required causal connection between the injury and the employment unless the proof fairly suggests either that the attacker singled out the employee because of his or her association with the employer or that the employment indiscriminately exposed the employee to dangers from the public.

Wait v. Travelers Indent. Co. of Ill., 240 S.W.3d at 230.

In the case before us, the trial court recognized the proper boundaries of the “street risk” doctrine but found that its requirements were not met. Even though the court acknowledged that “Xeliea is located in a neighborhood with a higher than average crime rate,” it found persuasive the dissimilarities between Xeliea and the neighboring business that had been burglarized frequently. The trial court noted that, unlike its neighboring business, “Xeli-ca was not frequented by the public nor did it advertise or attract the public.” The court also noted that Xeliea was secured with locks and a burglar alarm. The court concluded that “the conditions of Mr. Sanchez’ [sic] employment at Xeliea did not indiscriminately expose him to dangers of the public, including the danger of crime in the neighborhood.”

Ms. Padilla argues that Mr. Sanchez’s job “put him first in line to encounter intruders” because he was the first employee at the shop each morning. While it is uncontested that Mr. Sanchez was the first person to arrive at the shop, the evidence supports the conclusion that, when Mr. Sanchez was at the shop, he was as removed from the public as he could possibly be. The business was not open to the public. Mr. Sanchez’s duties did not require him to deal with the public. Members of the public were rarely in the shop. The record contains no evidence that members of the public frequented the vicinity of the shop during the early morning hours more than at other times during the day. As tragic as the facts of this case are, they do not provide a sound basis for us to conclude that the evidence preponderates against the trial court’s conclusion that the “street risk” doctrine does not apply to this case.

Y.

As a final matter, we turn our attention to whether Tennessee’s Workers’ Compensation Law requires or permits a presumption that employees injured in a neutral force assault are entitled to compensation unless the employer can prove that the injury arose from the employee’s personal activities. Ms. Padilla asserts that such a presumption is not inconsistent with the law or with this Court’s interpretations of the law. We respectfully disagree.

Tennessee’s Workers’ Compensation Law was enacted to provide injured employees with a streamlined process to receive compensation for work-related injuries. It did so by replacing common-law tort remedies with a no-fault system that provides compensation for work-related injuries based on a schedule of benefits. See Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d at 772; Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 182, 368 S.W.2d 760, 762 (1963); Partee v. Memphis Concrete Pipe Co., 155 Tenn, 441, 444, 295 S.W. 68, 69 (1927). To be entitled to recover the statutory workers’ compensation benefits, an employee need only show that his or her injury arose out of and occurred in the course of employment. Wait v. Travelers Indem. Co. of Ill., 240 S.W.3d at 225.

Tenn.Code Ann. § 50-6-116 (2008) directs the courts to construe the Workers’ Compensation Law as a “remedial statute, which shall be given an equitable construction by the courts, to the end that the objects and purposes of [the Workers’ Compensation Law] may be realized and attained.” However, even though the courts now construe the Workers’ Compensation Law liberally in favor of the injured employee or beneficiary, Crew v. First Source Furniture Grp., 259 S.W.3d 656, 664 (Tenn.2008); Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn.2007), we have held consistently that the burden of proving the entitlement to workers’ compensation benefits is always on the injured employee or beneficiary. See, e.g., Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 274 (Tenn.2009); Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn.2008); Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 168 (Tenn.2002).

Professor Larson has correctly noted that the effect of placing the burden of proof on the injured employee with regard to injuries caused by neutral risks generally results in requiring the employee, rather than the employer, to bear the loss. 1 Larson’s Workers’ Compensation Law § 4.03, at 4-3. While he has also noted that the cases are now “more evenly divided” with regard to the compensability of neutral assaults, many of the cases finding compensability are based either on a statutory presumption that an assault occurring on the work premises is work-related or on the fact that the nature of the employee’s work exposed the employee to the risk of assault. In cases where an employee sustains an injury at work from a neutral risk and there is no evidence that the risk was connected personally to the employee, the “positional risk” doctrine permits the employee to recover because the slender connection with the employee’s work “is at least stronger than any connection with the [employee’s] personal life.” 1 Larson's Workers’ Compensation Law § 4.03, at 4-3.

Tennessee’s courts have recognized that the Workers’ Compensation Law does not render an “employer an insurer against every accidental injury ... occurring during employment.” Scott v. Shinn, 171 Tenn. 478, 483, 105 S.W.2d 103, 105 (1937). Thus, Tennessee’s courts have consistently held that “the mere presence of the employee at the place of injury because of employment will not alone result in the injury being considered as arising out of employment.” Lennon Co. v. Ridge, 219 Tenn. 623, 636, 412 S.W.2d 638, 644 (1967) (quoting Knox v. Batson, 217 Tenn. 620, 631, 399 S.W.2d 765, 770 (1966)); see Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 137, 270 S.W.2d 389, 390 (1954); Thornton v. RCA Serv. Co., 188 Tenn. 644, 646, 221 S.W.2d 954, 955 (1949). Based on these settled holdings, this Court has repeatedly rejected a general application of the positional risk doctrine. Bell v. Kelso Oil Co., 597 S.W.2d 731, 734 (Tenn.1980); Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d at 599-600; Lennon Co. v. Ridge, 219 Tenn. at 636, 412 S.W.2d at 644.

The presumption that Ms. Padilla asks us to adopt is another variant of the positional risk doctrine. It would enable employees who are injured at work by a neutral risk to recover simply because they were injured at work. It would also dispense with the requirement that the injured employee or beneficiary prove that the injury arose out of the work. Rather than supporting Ms. Padilla’s proposed presumption, our case law squarely rejects it. Accordingly, we decline Ms. Padilla’s request to depart from our past precedents and leave it to the General Assembly to engraft such a presumption onto the Workers’ Compensation Law if it so chooses.

VI.

We affirm the judgments of the Special Workers’ Compensation Appeals Panel and the trial court and remand the case to the trial court for whatever proceedings consistent with this opinion may be required. We tax the costs of this appeal to Ana R. Padilla and her surety for which execution, if necessary, may issue.

GARY R. WADE, J., filed a dissenting opinion. CORNELIA A. CLARK, C.J., not participating.

GARY R. WADE, J.,

dissenting.

I respectfully dissent. A basic principle of the Workers’ Compensation Act (“the Act”) is its remedial purpose. Tenn.Code Ann. § 50-6-116 (2008); Trosper v. Armstrong Wood Prods., Inc., 273 S.W.3d 598, 609 n. 5 (Tenn.2008). For years, this Court has interpreted this statutory mandate to favor the employee under circumstances where there is “reasonable doubt” surrounding the compensability of a work-related claim. In my view, the claimant, in this instance, is entitled to the benefit of the doubt. Moreover, the “street risk doctrine,” inaptly named, should serve as an alternative basis for the establishment of the causal relationship necessary to sustain the propriety of this claim.

This state’s first workers’ compensation laws were enacted in 1919. Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn.2006); Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 846 (1920). A purpose of the Act was to provide a remedy for the injury or death of an employee against an employer without regard to negligence or fault. See Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 762 (1963); Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 69 (1927). As stated in Wait v. Travelers Indemnity Co., 240 S.W.3d 220 (Tenn.2007), the Act “is a legislatively created quid pro quo system where an injured worker forfeits any potential common law rights for recovery against his or her employer in return for a system that provides compensation completely independent of any fault on the part of the employer.” Id. at 224 (citing Tenn.Code Ann. § 50-6-108(a) (2005)).

For an injury to be compensable under the Act, it must both arise out of and occur in the course of employment. See Tenn. Code Ann. § 50-6-102(12) (2008); Blankenship v. Am. Ordnance Sys., LLS, 164 S.W.3d 350, 353-54 (Tenn.2005). As stated by the majority, however, these statutory requirements are not synonymous. See Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 901 (1957). Certainly, Jose Sanchez’s death meets the second criteria — “in the course of’ his employment— which refers to the “time, place, and circumstances.” Crew v. First Source Furniture Grp., 259 S.W.3d 656, 664 (Tenn.2008) (citing Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn.1997)). The question before us, therefore, is indeed whether the fatal attack on Sanchez arose out of his employment in the sense that his employment bore a causal relationship with his death.

When there is a causal connection between the conditions under which the work is required to be performed and the resulting injury, the injury arises out of the employment. Fritts v. Safety Nat'l. Cas. Corp., 163 S.W.3d 673, 678 (Tenn.2005). While evidence of causation must not be speculative or conjectural, absolute “certainty is not required, and reasonable doubt must be resolved in favor of the employee.” Glisson v. Mohon Int’l., Inc./Campbell Ray, 185 S.W.3d 348, 354 (Tenn.2006) (citations omitted). Moreover, “the law does not distinguish between the probative value of direct evidence and the probative value of circumstantial evidence.” Hindman v. Doe, 241 S.W.3d 464, 468 (Tenn.Ct.App.2007). Whether direct or circumstantial, evidence can be equally relevant, Neil P. Cohen et al., Tennessee Law of Evidence § 4.01 [5], at 4-11 (5th ed.2005), and equally probative, McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 825 (Tenn.Ct.App.2005) (citations omitted). Any material fact, of course, may be proven by using direct evidence, circumstantial evidence, or a combination of both. State v. Phillips, 138 S.W.3d 224, 230 (Tenn.Ct.App.2003); Burton v. Warren Farmers Coop., 129 S.W.3d 513, 523 (Tenn.Ct.App.2002).

In the case before us, Sanchez, who had been employed for several years by Xelica LLC, a limited liability corporation owned by George Moolman, opened business operations each day as a part of his job responsibilities. Xelica, a manufacturer of windows and doors for distribution to sales outlets, was located in a light industrial area in Nashville. Just before 5:30 a.m. on July 13, 2007, area residents heard gunshots but otherwise saw nothing unusual at the business premises. When Moolman arrived at 6:00 a.m., Sanchez was not at his work station, the machines were not in operation, and music, which was typically turned on by the time of his arrival, was not playing. Moolman then discovered Sanchez’s body. There were two bullet wounds to the chest and two to the head. A police investigation established that there was some damage to the door. The lead detective, David Achord, testified that “[tjhere was a scratch on the exterior side of the door, and then there was some damage to the door frame itself where the dead bolt would lock and the door latch would lock.” Detective Brad Corcoran testified that there were two doors on site: a roll-up door and a walk-through door. He stated that “[tjhe walk-through door had a bullet hole or two, as I recall, that was in it. It looked like it had been shot from the outside in.” He also stated that “There was some type of damage to the lock, as I recall now. It was damaged almost like it was knocked off.” On cross-examination, he expressed uncertainty about whether the bullets were shot through the outside or the inside of the door. He confirmed that the damage to the lock was on the inside. Nothing had been stolen from the business and Sanchez’s personal effects remained undisturbed. The investigation further established that Sanchez had no criminal history. The police were unable to determine any motive for his murder. There was no indication that the assault was connected in any way to the private life of Jose Sanchez. Ultimately, no one was charged with any crime, and the investigation was transferred to the cold case unit of the Metropolitan Police.

There was circumstantial evidence at trial. There was proof that Xelica was located in a high-crime area. For example, a nearby business, which sold auto parts, had been burglarized on over twenty different occasions. As a precaution, the owner had secured a handgun permit, hired a security guard, and placed razor wire fencing around his property. Moreover, the police had investigated nine other forced entries, three unforced entries, and one murder in the area between 2005 and Sanchez’s death in 2007. Xelica had been burglarized on two different occasions, both of which were “inside jobs” by employees who were later terminated. Mool-man acknowledged that he had considered building a security fence as a means of added security. There was no suggestion that the murder was connected with either the fired employees at Xelica or those still on the payroll.

Twin City Fire Insurance Company, Xe-lica’s workers’ compensation insurance carrier, made three arguments: first, that the neighboring business that had been burglarized on several occasions was different, in that it was open to the public, while Xelica was exclusively a manufacturer; second, that Xelica’s prior burglaries had been committed by its own employees; and third, that theft was an unlikely motive because nothing had been taken from the premises. While declining to grant a motion for directed verdict, the trial court ultimately agreed with Twin City’s contentions, concluding that while the evidence did not connect the crime to Sanchez’s private life, neither had it established that the motive for the murder was burglary, and, thus, the theory in support of recovery and the theory of the defense were equally plausible. Further, the trial court determined that the street risk doctrine, adopted in 1979 to “provid[e] the necessary causal connection between the employment and the injury” when “the employment exposes the employee to the hazards of the street,” had no application under these circumstances. Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 602 (Tenn.1979).

Initially, I fear that the majority, by classifying this case as an assault resulting from a “neutral force” (or a random assault), has failed to give adequate consideration to the circumstantial evidence, largely unrefuted, presented in support of the claim for benefits, and in consequence, has neglected to give appropriate deference to the remedial nature of the Act. See Tenn. Code Ann. § 50-6-116. Language appearing in Martin v. Lear Corp., 90 S.W.3d 626 (Tenn.2002), illustrates my concern:

Tennessee Code Annotated section 50-6-116 declares the Workers’ Compensation statute to be remedial in nature, and directs that the statute “shall be given an equitable construction by the courts, to the end that the objects and purposes of this chapter may be realized and attained.” “Accordingly, 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.’”

Id. at 629 (emphasis added) (citations omitted); see also Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 943 (1964) (same).

This Court has consistently ruled that “any reasonable doubt as to whether an injury arose out of the employment is to be resolved in favor of the employee.” E.g., Beck v. State, 779 S.W.2d 367, 371 (Tenn.1989). Even when the assault has been classified as “neutral,” this Court has traditionally applied this principle and granted recovery to the employee. For example, in Braden v. Sears, Roebuck & Co., 833 S.W.2d 496 (Tenn.1992), the employee, a television technician who made house calls to Sears customers in a van furnished by the employer, parked the van in his driveway at the end of his workday. Id. at 497-98. While reviewing work documents in order to organize his schedule for the following day, the technician was assaulted and robbed of twenty dollars by an unknown assailant. Id. at 498. Despite the employee being “off the clock” and away from the business premises, this Court sustained his workers’ compensation claim, observing that the “arising out of’ requirement is satisfied if an injury has a rational, causal connection to the work. Id. This Court confirmed the viability of the princi-pie that “any reasonable doubt as to whether an injury arose out of the employment is to be resolved in favor of the employee.” Id.; see also Beck, 779 S.W.2d at 371.

Further, Justice Frank Drowota, writing for the Court in Braden, concluded that “while we approve of the street risk doctrine as an aid to evaluate the causal relationship between certain injuries and employment, we caution that ‘each case must be decided with respect to its own attendant circumstances and not by resort to some formula.’” 833 S.W.2d at 499 (emphasis added) (quoting Bell v. Kelso Oil Co., 597 S.W.2d 731, 734 (Tenn.1980)). Even though the Court applied the street risk doctrine in Braden, the quoted language, I believe, also stands for the proposition that the doctrine need not be invoked when the circumstances of the case establish, even if marginally so, a causal connection between the assault and the employment.

Finally, unlike the majority, I view the street risk doctrine as either an augmentation of the basic claim or an alternative basis for recovery under these facts. As an initial matter, the street risk doctrine may be applied to injuries which occur at the place of employment as well as those on the “streets.” See Hurst v. Labor Ready, 197 S.W.3d 756 (Tenn.2006); Jesse v. Savings Prods., 772 S.W.2d 425 (Tenn.1989). Further, the fact that Xelica did not engage in retail sales is not a valid reason to refuse application of the street risk doctrine to these circumstances. While explaining the nature of the street risk doctrine, this Court in Hurst observed that “workers whose employment exposes them to the hazards of the street, or who are assaulted under circumstances that fairly suggest they were singled out for attack because of their association with their employer, are entitled to establish this causal connection with the aid of the street risk doctrine.” 197 S.W.3d at 761 (quoting Braden, 833 S.W.2d at 499). In Hurst, while the employee waited outside his employer’s building to be paid, a manager refused to allow a passerby into the building to use a restroom in accordance with company policy. 197 S.W.3d at 758-59. A dispute ensued, and the employee was shot and killed. This Court concluded that Hurst was “singled out for attack because of [his] association” with his employer due to the fact that he was readily identifiable as an employee and the shooting “stemmed from” Labor Ready’s enforcement of its own policies. Id. at 761-62.

The case before us presents an even stronger claim than that in Hurst. When an employee, who is authorized to open business operations in a location particularly vulnerable to criminal activity, is shot and killed by an assailant who had gained entry into the premises by means unknown, surely his family is entitled to benefits. Under circumstances such as these, an employee should expect workers’ compensation coverage.

In summary, I believe that the circumstantial evidence in this instance is sufficient for this Court to resolve “reasonable doubt” as to causation favorably to the employee. The remedial nature of the statute would justify that. Further, the street risk doctrine, in my view, provides either an “aid” justifying the claim or an alternate basis for recovery. In Larson’s Workers’ Compensation, the author addresses occasions when an assault occurs for which there is no explanation or cause, and “even with all the facts available, no one can figure out why the assault was committed. Nothing connects it with the victim privately; neither can it be shown to have had a specific employment origin.” 1 Arthur Larson & Lex K. Larson, Lar son’s Workers’ Compensation, Desk Edition § 8.03[3], at 8^4 (2008). This treatise suggests the following remedy:

If the claimant is in fact exposed to that assault because he or she is discharging employment duties at that time and place, there is no better reason here than in the unexplained-fall or death cases to deny an award merely because claimant cannot positively show that the assault was motivated by something connected with the work. Although the cases are more evenly divided on unexplained assaults than on unexplained falls or deaths, there is now a demonstrably larger body of authority for awarding compensation on these facts than for denying it.

Id. (emphasis added). By the ruling today, this Court appears to have adopted the minority view among the states that have considered the issue. Finally, as to the street risk doctrine, the following language addresses the three kinds of risks identified in the majority opinion, but offers a more preferable result:

There are thus three categories of risk; but unfortunately, there are only two places where the loss may fall — on the industry or on the employee. And so the question becomes, which bears the burden of this in-between category of harms?
... [T]he usual answer in the past has been to leave this loss on the employee, on the theory that he or she must meet the burden of proof of establishing affirmatively a clear causal connection between the conditions under which the employee worked and the occurrence of the injury. More recently, however, some courts have reasoned in the following vein: Either the employer or the employee must bear the loss; to show connection with the employment, there is at least the fact that the injury occurred while the employee was working; to show connection with the employee personally there is nothing; therefore, although the work connection is slender, it is at least stronger than any connection with the claimant’s personal life.

Id. § 4.03, at 4-3 (emphasis added). I agree with this assessment. While the connection between the death of Sanchez and his work perhaps qualifies as slender, surely the evidence creates “reasonable doubt” as to cause, because there was no connection whatsoever to his personal life.

For all of these reasons, I must respectfully dissent from the opinion of the majority.

      . The burglar alarm records showed that the alarm was deactivated, presumably by Mr. Sanchez, at 4:42 a.m.

      . Professor Larson has explained that a neutral-risk case includes cases "in which the cause itself, or the character of the cause, is simply unknown.” 1 Arthur Larson & Lex K. Larson, Larson’s Workers' Compensation Law § 4.03, at 4-3 (2009) ("Larson’s Workers’ Compensation Law He has illustrated this type of case by pointing out that
      [a]n employee may be found to have died on the job from unexplained causes, or he or she may suffer a slip or fall for no reason that anyone, including the employee, can explain. An employee may be attacked by unknown persons, whose motives may have been personal or related to the employment.
      1 Larson’s Workers’ Compensation Law § 4.03, at 4-3.

      . Ms. Padilla concedes that the trial court and the Special Workers’ Compensation Appeals Panel did not err by classifying the assault on Mr. Sanchez as a neutral assault. She states in her brief that
      For the most part the appellant agrees with the trial court’s findings of fact. In turn, the special workers' compensation panel issued a Memorandum Opinion which pretty well briefed the issue at hand, that is, whether there is a presumption in favor of the employee in a case of a neutral force assault.

      . The record is clear that Mr. Sanchez's job did not require him to be the first person at the shop each morning. In fact, Mr. Sanchez had repeatedly requested Mr. Moolman to permit him to open the shop early because Mr. Sanchez did not desire to return home after driving Ms. Padilla to work each morning. Mr. Moolman eventually accommodated Mr. Sanchez by allowing him to open the shop.

      . The facts of this case differ significantly from the facts of Braden v. Sears, Roebuck & Co., 833 S.W.2d 496 (Tenn.1992) that involved an assault and robbery on a Sears television repair technician. The technician was assigned a Sears van which he drove to his customers’ houses during the day and then parked in his driveway at night. At the end of each day, another Sears employee came to the technician’s home to collect the payments received during the day, to restock the van with parts, and to provide the technician with his service calls for the next day. The technician was assaulted and robbed one evening in his driveway while he was preparing his van for the next day. He was wearing his Sears uniform at the time. Based on these facts, the Court invoked the street risk doctrine because ”[i]t is ... reasonable to conclude Plaintiff was targeted for attack because of his association with Sears, and in hope that this association would sweeten the fruits of the crime.” Braden v. Sears, Roebuck & Co., 833 S.W.2d at 499.

      . When an employee presents some evidence that his or her injury arose out of and occurred in the course of his or her employment, the courts will resolve any reasonable doubt about whether the injury arose out of the employment in the employee’s favor. DeBow v. First Inv. Prop., Inc., 623 S.W.2d 273, 275 (Tenn.1981). However, this principle does not apply without some evidence. As this Court noted, ”[t]he liberal construction rule applying to workers’ compensation cases is not broad enough to supply proof where none exists.” Legions v. Liberty Mut. Ins. Co., 703 S.W.2d 620, 623 (Tenn.1986).

      . 1 Larson's Workers' Compensation Law § 8.03[3], at 8-67. Of the twenty jurisdictions cited by Professor Larson, eight jurisdictions permitted recovery based on the positional risk doctrine; four jurisdictions permitted recovery based on statutes that lack a counterpart in Tennessee; and seven jurisdictions used the street risk doctrine to conclude that the assault arose out of the employment. The case cited by Professor Larson as an example of Ohio law is actually a case from Indiana. Although not cited by Professor Larson, the District of Columbia employs a statutory presumption of compensability based on the positional risk doctrine. Clark v. D.C. Dep’t of Emp’t Servs., 743 A.2d 722, 728 (D.C.2000).

      . "[T]his chapter is declared to be a remedial statute, which shall be given an equitable construction by the courts, to the end that the objects and purposes of this chapter may be realized and attained.”

      . The general rule is that the injury is in the course of employment " 'when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.’ ” Blankenship, 164 S.W.3d at 354 (quoting 1 Larson’s Workers' Compensation Law § 12 (2004)).
      In Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn.1991), this Court made the following observation:
      The phrase "in the course of” refers to time, place, and circumstances, and "arising out of” refers to cause or origin. “[A]n injury by accident to an employee is in the course of employment if it occurred while he was performing a duty he was employed to do; and it is an injury arising out of employment if caused by a hazard incident to such employment.” Generally, an injury arises out of and is in the course and scope of employment if it has a rational connection to the work and occurs while the employee is engaged in the duties of his employment.

        Id. (citations omitted).

      . Whether that component of his job was at Sanchez’s request or not is of no consequence, because the employer is obviously the final authority as to the duties of employment.


source: Caselaw Access Project

author: D. MICHAEL SWINEY, J„

license: Public Domain

text:
    In re HANNAH S.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Jan. 6, 2010 Session.
    Feb. 12, 2010.
    Permission to Appeal Denied by Supreme Court Aug. 30, 2010.

      Luke A. Evans and Chris L. Richardson, Murfreesboro, Tennessee, for the Appellant, Shannon G.
    Daryl M. South and Brandon M. Booten, Murfreesboro, Tennessee, for the Appel-lees, John G. And Tammy G.
   OPINION

D. MICHAEL SWINEY, J„

delivered the opinion of the court,

in which FRANK G. CLEMENT, JR., and RICHARD H. DINKINS, JJ., joined.

Pursuant to statute and the Rules of Juvenile Procedure, a dependency and neglect proceeding is conducted in two distinct phases. The first phase involves an adjudicatory hearing where the juvenile court must determine if the allegations in the dependency and neglect petition have been sustained. If the allegations have been sustained, the juvenile court “may proceed immediately or at a later hearing” to the dispositional phase of the proceeding. Tenn. R. Juv. P. 27(b); see also Tenn.Code Ann. § 37-l-129(c). This appeal involves a juvenile court dependency and neglect proceeding that has been appealed to the circuit court. The issue on interlocutory appeal is whether the notice of appeal to the circuit court filed within ten days of entry of the order on the dispositional hearing, but more than ten days after entry of the order on the adjudicatory hearing, was a timely appeal of the adjudicatory hearing order. We conclude that it was. The Circuit Court’s judgment to the contrary is reversed, and this case is remanded to the Circuit Court for further proceedings consistent with this Opinion.

Background

This case began over a decade ago in the Rutherford County Juvenile Court when John G. and Tammy G. filed a petition seeking a determination that their two year old granddaughter/step-granddaughter, Hannah S. (“the Child”), was dependent and neglected. The Petition was filed on November 9, 1999, and was brought against Shannon G. (“Mother”), the Child’s biological mother. John G. and Tammy G. alleged that the Child’s biological father never had been established, that Mother had been living with a man out of wedlock, and that Mother recently had been evicted from her residence. They further claimed that Mother had left the Child in their care. Among other things, the petitioners sought an order granting them temporary custody of the Child.

On November 80, 1999, the Juvenile Court entered an order declaring the Child dependent and neglected. John G. and Tammy G. were granted temporary custody of the Child. Mother was ordered to pay $25.00 per week in child support.

This case remained dormant from November 30, 1999, until August 21, 2007, when Tammy G. filed a petition seeking to have the Child placed in her care. By this time, Tammy G. and John G. were in the process of getting a divorce. The petition was filed against John G. and Mother. Tammy G. alleged that although Mother had been ordered to pay child support and was awarded reasonable supervised visitation back in 1999, Mother had paid child support only one time and visited the Child on an “extremely minimal basis.” According to the petition:

Petitioner would show unto the court that she and the respondent, [John GJ, are presently going through a divorce filed in the Chancery Court of Rutherford County, Tennessee. Petitioner would show that, since the entry of the order on November 30, 1999, she had been a daily caretaker of the minor child, has established an extremely close relationship with the minor child, and in all practical matters and effects has acted as a mother to the child. Petitioner would allege and aver that both she and the respondent, [John GJ, have acted and cared for the child as proper and responsible parents and the minor child, both literally and emotionally, responds to them as her natural parents....
Petitioner would allege and aver that, as a result of the close contact, emotional bond, love and relationship, and the experiences provided as caretaker and mother figure, it is proper that a parenting plan be entered by the court which provides for continuing time and availability between the petitioner and the respondent, [John GJ ... with the minor child....

Apparently, disagreements soon arose between Tammy G. and her soon-to-be ex-husband, John G. On September 12, 2007, Tammy G. filed a motion requesting the immediate entry of a parenting plan. According to this motion:

It was anticipated by the petitioner that the respondent, [John GJ ... would act in a reasonable and proper fashion and allow the minor child to continue to enjoy the benefit of each of their care, involvement, caretaking skills, and parental associations.... Unfortunately, it will be shown that the respondent, [John G.] has not acted in a fashion [that is] in the best interest of the minor child. In fact, it will be shown unto the court that [John G.] has asserted some right of control, or power, over the minor child and has only allowed the petitioner very limited access to the minor child.

John G. responded to the petition and admitted that it was in the Child’s best interest that she continue a relationship with both parties. John G. filed a counter-petition seeking to have primary residential time with the Child, but also requesting that Tammy G. be awarded visitation.

In October of 2007, Mother stepped back into the picture and filed her own petition seeking to regain custody of the Child. Mother alleged that due to John G. and Tammy G. divorcing and because the Child would no longer be living with both of them, it was in the Child’s best interest for Mother to regain full custody rights. Alternatively, Mother sought liberal visitation rights.

In May of 2008, a temporary order was entered granting Mother visitation rights with the Child. Mother’s visitation was conditioned upon Mother being able to pass a drug test “at least once per month.”

A new dependency and neglect hearing was conducted on June 3, 2008. Thereafter, on July 15, 2008, the Juvenile Court entered an order again finding the Child to be dependent and neglected by Mother. The Juvenile Court noted in this Order that it found John G. and Tammy G. to be more credible than Mother. The Juvenile Court then stated:

The court makes the following findings of fact by clear and convincing evidence pursuant to T.C.A. 37-1-102(12)(g): that the child at issue in this cause has suffered neglect by the hands of the mother in the following ways: (1) the mother voluntarily, prior to April 1999, allowed her father and stepmother to help her care for this child; (2) that from April to the hearing at the end of November, that the mother was financially unstable and unable to provide for the necessities of this child; (3) that the mother’s housing was unstable, never staying in one residence more than two months; (4) that the mother’s decision making and parenting skills were improper as to her choice of roommates, and friends of those roommates, including the fact that said roommates failed to work and nobody contributed to the care of the residences; (5) that the mother made improper decisions with regards to a party and then having the minor child around the related incidents of that party; (6) that the child was neglected by the mother as a result of her failure to visit with the minor child on a regular basis and to form a relationship or bond with the minor child; [and] (7) that the mother has neglected the child and has failed to pay support for the child or other in kind support. ...
The court finds that due to the mother’s instability, improper parenting choices, failure to visit, failure to support, and failure to develop a relationship with this child, that the child was in a position of immediate harm and would have suffered such harm if the child had been returned back to the mother at the end of the time of the probable cause hearing....
As a result of the above finding, the court finds that the child was a dependent and neglected child based upon all the grounds as stated above and the mother loses her superior parental rights as to this child....

After the Child was found to be dependent and neglected, a final dispositional hearing was held on August 18, 2008. Following this second phase of the proceeding, the Juvenile Court entered an order on October 6, 2008 placing the Child in the joint custodial care of John G. and Tammy G. In addition, the Juvenile Court set forth a visitation schedule for Mother and ordered her to pay child support.

Eighty-seven (87) days after entry of the order finding the Child dependent and neglected, and four (4) days after the Juvenile Court entered its order from the final dispositional hearing, on October 10, 2008, Mother filed a notice of appeal to the Circuit Court. One of the issues raised in the Circuit Court was whether Mother’s appeal was timely as to the order entered following the dependency and neglect hearing. John G. and Tammy G. argued that in order for Mother to appeal the July 15, 2008 order on the adjudicatory hearing, she was required to file a notice of appeal within ten (10) days of the entry of that order. Mother disagreed, arguing that she could appeal the orders on both the adjudicatory hearing and the final disposi-tional hearing by filing one notice of appeal within ten (10) days of entry of the order following the final dispositional hearing.

The Circuit Court agreed with John G. and Tammy G. and entered an order stating as follows:

It is the court’s finding and ruling that the order of the Juvenile Court of July 15, 2008, was an adjudicatory hearing which was appealable as of right by either party within ten days of entry of the order pursuant to T.C.A. § 37-1-[159]. The court further finds that there was no timely appeal from that adjudicatory hearing and therefore all issues regarding the adjudicatory hearing have been concluded and are not properly before this court.
The court finds that the defendant did timely appeal the Juvenile Court’s dispo-sitional hearing and therefore those issues are properly before the court for further dispositional hearing and ruling on this appeal.
Either party may file a motion requesting an interlocutory appeal, (original paragraph numbering omitted).

Mother thereafter filed a motion requesting permission from the Circuit Court to file an interlocutory appeal on the issue of whether her appeal was timely with respect to the July 15, 2008, order finding the Child dependent and neglected. The Circuit Court granted Mother’s motion. This Court, likewise, granted Mother’s request for an interlocutory appeal. In an order dated August 7, 2009, we stated:

The mother in this dependent and neglect case has filed a Tenn. R.App. P. 9 application for permission to appeal from an order entered by the Circuit Court for Rutherford County on May 12, 2009, holding that the mother failed to file a timely appeal to the Circuit Court from the Juvenile Court’s July 15, 2008 adjudicatory order finding the child to be dependent and neglected and that the mother’s appeal to the Circuit Court thus was limited to the issues related to the Juvenile Court’s October 6, 2008 dis-positional order. The trial court granted the mother permission to appeal to this court pursuant to Tenn. R.App. P. 9 on July 14, 2009. Having reviewed both the Tenn. R.App. P. 9 application and the answer filed in opposition thereto, we concur with the trial court that this is an appropriate case for an interlocutory appeal....

Discussion

The pertinent underlying facts necessary for resolution of this appeal are undisputed, and this appeal involves solely a matter of statutory interpretation. “Statutory interpretation is a question of law, which we review de novo, with no presumption of correctness given to the courts below.” Sullivan ex rel. Hightower v. Edwards Oil Co., 141 S.W.3d 544, 547 (Tenn.2004) (citing Wallace v. State, 121 S.W.3d 652, 656 (Tenn.2003)).

Juvenile Courts are given exclusive original jurisdiction over dependency and neglect proceedings. See TenmCode Ann. § 37-l-103(a)(l) (2005 & Supp.2009). There are essentially two phases to a dependency and neglect proceeding, assuming there is an initial finding of dependency and neglect. Specifically, TenmCode Ann. § 37-1-129 (2005) requires an initial hearing on the dependency and neglect petition and, if a child is found to be dependent and neglected, the court must proceed with a disposition of the case. According to the statute:

(a)(1) After hearing the evidence on the petition, the court shall make and file its findings as to whether the child is a dependent or neglected child, or, if the petition alleges that the child is delinquent or unruly, whether the acts ascribed to the child were committed by that child. If the court finds that the child is not a dependent or neglected child or that the allegations of delinquency or unruly conduct have not been established, it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.
(2) If the petition alleged the child was dependent and neglected as defined in § 37-l-102(b)(12)(G), or if the court so finds regardless of the grounds alleged in the petition, the court shall determine whether the parents or either of them or another person who had custody of the child committed severe child abuse. The court shall file written findings of fact that are the basis of its conclusions on that issue within thirty (30) days of the close of the hearing or, if an appeal of a petition for certiorari is filed, within five (5) days thereafter, excluding Sundays.
* * *
(c) If the court finds from clear and convincing evidence that the child is dependent, neglected or unruly, the court shall proceed immediately or at a postponed hearing to make a proper disposition of the case....

TenmCode Ann. § 37-1-129 (2005).

This two phase process is also discussed in Tenn. R. Juv. P. 27(b) which provides as follows:

(b) Phases of Hearings. Hearings in juvenile matters shall be conducted in two separate phases, the adjudicatory hearing, and the dispositional hearing, which may be continuous. The court shall first conduct an adjudicatory hearing to determine if the allegations of the petition are sustained. If the allegations of the petition are not sustained the petition shall be dismissed. If the allegations of the petition are sustained, the court may proceed immediately or at a later hearing to the dispositional phase of the proceeding. Pending disposition, the court may enter such order of protection and assistance as the court deems necessary under the circumstances, in the best interest of the child and for the protection of the public.

If there has been a finding of dependency and neglect, a juvenile court is guided by Tenn.Code Ann. § 37-1-130 (2009) when deciding the proper disposition of the case. For example, according to § 37-1 — 130(a)(1):

(a)If the child is found to be dependent or neglected, the court may make any of the following orders of disposition best suited to the protection and physical, mental and moral welfare of the child:
(1) Subject to the restrictions of § 37-l-129(e), permit the child to remain with the child’s parents, guardian or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child....

A final judgment of a juvenile court in a dependency and neglect proceeding can be appealed to the circuit court within ten (10) days. As relevant to this appeal, TenmCode Ann. § 37-1-159 (2005) provides as follows:

(a) The juvenile court shall be a court of record; ... and any appeal from any final order or judgment in an unruly child proceeding or dependent and neglect proceeding, filed under this chapter, may be made to the circuit court that shall hear the testimony of witnesses and try the case de novo. The appeal shall be perfected within ten (10) days, excluding nonjudieial days, following the juvenile court’s disposition....
(b) An appeal does not suspend the order of the juvenile court, nor does it release the child from the custody of that court or of that person, institution or agency to whose care the child has been committed. Pending the hearing, the criminal court or circuit court may make the same temporary disposition of the child as is vested in juvenile courts; provided, that until the criminal court or circuit court has entered an order for temporary disposition, the order of the juvenile court shall remain in effect.
(c) When an appeal has been perfected, the juvenile court shall cause the entire record in the case, including the juvenile court’s findings and written reports from probation officers, professional court employees or professional consultants, to be taken forthwith to the criminal court or circuit court whose duty it is, either in term or in vacation, to set the case for an early hearing. When an appeal is taken from a juvenile court’s decision that involves the removal of a child or children from the custody of their natural or legal parents or guardian or from the department of children’s services, or when the decision appealed involves the deprivation of a child’s liberty as the result of a finding that such child engaged in criminal activity, such hearing shall be held within forty-five (45) days of receipt of the findings and reports. In its order, the criminal court or circuit court shall remand the case to the juvenile court for enforcement of the judgment rendered by the criminal court or circuit court. Appeals from an order of the criminal court or circuit court pursuant to this subsection (c) may be carried to the court of appeals as provided by law....

Tenn.Code Ann. § 37-1-159 (emphasis added).

In relevant part, Tenn. R. Juv. P. 36 provides as follows with respect to the appeal at issue in this case:

(a) De Novo Appeal. Appeals may be taken in accordance with Tenn.Code Ann. § 37-1-159.
(e) Filing. An appeal may be perfected by filing a notice of appeal with the clerk of the juvenile court, within ten (10) days, excluding non-judicial days, of the entry of the order of final disposition. When an appeal has been perfected, the clerk shall cause the entire record in the case, including the juvenile court’s findings and written reports from probation officers, court employees or professional consultants, to be taken forthwith to the circuit court, where the case shall be set for a hearing in accordance with T.C.A. § 87-1-159. (emphasis added)

Based on the foregoing, we hold that in order for Mother to appeal the order entered on the adjudicatory hearing, she needed to file her notice of appeal within ten (10) days of entry of the order on the dispositional hearing. As Mother did file her notice of appeal within that ten (10) day period, her appeal was timely with respect to both the adjudicatory and dispo-sitional hearing orders.

We reach this result for several reasons. First, the statute clearly envisions that the adjudicatory hearing and the dispositional hearing will be close in time. If we required a notice of appeal to be filed within ten (10) days of the adjudicatory hearing order, we would essentially be requiring two notices of appeal to be entered in order to appeal everything to the circuit court. It would be impractical and, at best, confusing to have separate appeals from two hearings close in time involving such closely related issues. Proceedings could be pending simultaneously in two different courts involving the same general subject matter. This unworkable result would be made worse if there were further appeals to this Court or the Supreme Court. If Mother was required to file two separate appeals, then one of the appeals could be pending in this Court while the other is still being pursued in the Circuit Court. In short, it only makes sense to appeal all of the issues together.

More importantly, not only is the conclusion that we have reached much more workable than the alternative, it also is supported by the plain language of the statute. Tenn.Code Ann. § 37-1-159 states that an appeal must be perfected within ten (10) days “following the juvenile court’s disposition.” We interpret this to mean the dispositional hearing. Likewise, Tenn. R. Juv. P. 36(e) states that an appeal must be filed within ten (10) days “of the entry of the order of final disposition.” While there are two phases in a dependency and neglect proceeding, it is still only one proceeding. When there is an initial finding of dependency and neglect, clearly the entry of the order of final disposition can take place only after the phase two dispositional hearing, as opposed to the phase one adjudicatory hearing.

John G. and Tammy G. rely on this Court’s unreported opinion in Department of Children’s Services v. R.R., No. E2006-02785-COA-R3-PT, 2006 WL 3431938 (Tenn.Ct.App. Nov. 29, 2006), perm. app. denied Mar. 12, 2007, in support of their position that two notices of appeal must be filed. At first blush, this Opinion does appear to support their position, but only at first blush.

In R.R., we held that the juvenile court’s order following the “adjudicatory” hearing was a final appealable order pursuant to Tenn.Code Ann. § 37-1-159 and Tenn. R. Juv. P. 36. R.R., 2006 WL 3431938, at *2. In R.R., the adjudicatory hearing was held in April 2003. Thereafter, the juvenile court detailed various conditions which necessitated the disposition of the children by placing them with the Department of Children’s Services. Thus, the dispositional phase did take place. The orders terminating the mother’s and father’s parental rights were not entered until January of 2006, almost three years after the initial adjudicatory hearing. Id. at * 1, 2.

One of the issues on appeal in R.R. was whether, at the trial on the petition to terminate parental rights, the parents were collaterally estopped to relitigate matters raised at the dependency and neglect proceeding held almost three years earlier. We held that the order entered following the “adjudicatory hearing” was a final appealable order and, therefore, collateral estoppel applied. As the disposi-tional phase also had in fact taken place in R.R., we misspoke in that opinion when we stated that the order following the “adjudicatory” hearing was the final order. We more accurately should have stated that the order following the “dispositional” phase was the final appealable order. This would not have changed anything of substance in that case.

In summary, we conclude that Mother’s notice of appeal filed within ten (10) days of entry of the order following the dispositional hearing was timely and sufficient to appeal any of the issues from either or both the adjudicatory hearing and the dispositional hearing. The Circuit Court’s decision to the contrary is reversed. This case is remanded to the Circuit Court for further proceedings consistent with this Opinion.

Conclusion

The judgment of the Circuit Court is reversed and this cause is remanded to the Circuit Court for further proceedings consistent with this Opinion and for collection of the costs below. Costs on appeal are taxed to the Appellees, John G. and Tammy G., for which execution may issue, if necessary.

      . John G. is the maternal grandfather of Hannah S. John G.’s wife, Tammy G., is the step-grandmother of Hannah S.

      . It is unclear but certainly possible that the dispositional phase in R.R. took place immediately after the hearing where the child was found dependent and neglected. As quoted previously, Tenn.Code Ann. § 37-l-129(c) permits, and perhaps encourages, the juvenile court to "proceed immediately” to the dispo-sitional phase. Because of this, in R.R. there may have been only one order entered which addressed both phases. In other words, the order entered following the "adjudicatory” hearing and the order addressing the disposition may have been the same order.


author: HOLLY M. KIRBY, J.,

text:
    Norma Jean CLEMONS, Successor to Harold Clemons, and Larry Douglas Clemons d/b/a Clemons Wrecker Service v. Johnny Steve COWAN.
    Court of Appeals of Tennessee, Eastern Section, at Nashville.
    Assigned on Briefs Nov. 16, 2009.
    Feb. 4, 2010.
    Application for Permission to Appeal Denied by Supreme Court Aug. 25, 2010.

      Henry Clay Barry, Lebanon, Tennessee, for the appellant/defendant, Johnny Steve Cowan.
    Michael P. McGovern, Knoxville, Tennessee, for the appellees/plaintiffs, Norma Jean Clemons and Larry Douglas Clemons.
   MEMORANDUM OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.

This is a libel case. The plaintiffs owned and operated a business that performed services for the county sheriffs department for twenty years. In the context of an election for the office of sheriff, the defendant challenger published several advertisements in the local newspaper that insinuated that the incumbent sheriff allowed the plaintiffs to charge the county inflated fees for their services. The defendant did not win the election, but nevertheless, the plaintiffs’ services contract with the county was cancelled. The plaintiffs sued the defendant for libel and tortious interference with business relationship. Prior to the trial, one of the plaintiffs died and his wife was allowed to substitute as a party. The matter proceeded to a jury trial, and the jury ultimately awarded compensatory and punitive damages. After the defendant’s motion for a new trial was denied, the defendant appeals. We affirm.

Facts and Proceedings Below

Plaintiff/Appellee Larry Douglas Clemons owned and operated a towing service and automotive repair business, Clemons Wrecker Service (“Clemons Wrecker”), with his father, Harold Clemons, in Carthage, Tennessee. For at least twenty years, Clemons Wrecker performed service and maintenance work on the patrol vehicles used by the Smith County Sheriffs Department.

In 2006, an election for the office of Smith County Sheriff was held. The incumbent, Sheriff Johnny Bane, had several challengers, including Defendant/Appellee Johnny Steve Cowan (“Cowan”). As part of his campaign, Cowan authored and published a series of advertisements which appeared in the local newspaper, the Carthage Courier, from February to June in 2006.

In the advertisements, Cowan sought to highlight the purported wasteful spending of the incumbent’s administration and to persuade voters that, if elected, Cowan would stop the wasteful spending. On February 16, 2006, Cowan ran an ad that said:

The citizens of Smith County are already paying for expenses that are inflated and unnecessary. One repair for one county patrol car was paid in the amount of $1,214.00. I have an estimate from a mechanic for this one repair, cutting the costs down to $548.00. This is a difference of $666.00. On this one particular invoice, for one patrol car, you, the citizens, paid $9.07 per quart for synthetic oil and you were billed for 6 quarts. This money belongs to the citizens of Smith County. This is your money!

The next month, in the March 16, 2006 issue of the Carthage Courier, Cowan ran an ad saying:

The Sheriffs Department must operate and be accountable for the funds that a county this size has available. We must stop paying for “price gouging” for the repair of our patrol cars. How many of you would pay over $9.00 for one quart of oil for your car?

In the April 13, 2006 issue of the Carthage Courier, Cowan published the following: “In December of 2005, we [the taxpayers] paid Clemons Wrecker Service $85.77 for a 5 quart synthetic oil change. The same oil change I can get done for $25.00 less at a local facility.” Apparently, some of Co-wan’s ads incorporated copies of invoices from Clemons Wrecker.

Following publication of Cowan’s advertisements, an attorney representing Larry Clemons and Clemons Wrecker sent Co-wan a letter pursuant to Tennessee Code Annotated § 29-24-103. In the letter, the attorney informed Cowan that Clemons considered the ads to be libelous because they falsely implied that Clemons was improperly inflating maintenance costs. The attorney demanded that Co-wan “publish a full and fair correction, apology, or retraction in the Carthage Courier in as conspicuous a place as the original advertisements containing the libelous statements.” Cowan received the letter, but did not publish either a correction or a retraction.

On May 31, 2006, Larry Clemons and Harold Clemons filed the instant lawsuit against Cowan, seeking compensatory damages for libel and tortious interference with a business relationship. The complaint sought punitive damages for the libel. Cowan’s answer admitted publication of the advertisements, but denied all other allegations. Discovery and discovery disputes ensued.

In August 2006, while the lawsuit was pending, the vote on the Sheriffs election occurred. Cowan did not win the election. Incumbent Sheriff Johnny Bane was defeated by another challenger, who then decided not to hire Clemons Wrecker to service the County’s patrol vehicles.

The case was set for jury trial in July 2008. About four months prior to trial, Plaintiff Harold Clemons suffered a heart attack and passed away. After his death, Plaintiff Larry Clemons filed a suggestion of death and a motion for leave to file an amended and supplemental complaint. The motion did not seek substitution, but rather stated that Larry Clemons would prosecute the action on his own. Before the trial court could rule on Larry Clemons’s motion, the surviving spouse of Harold Clemons, Norma Jean Clemons, filed a motion for substitution, requesting “that she be substituted as plaintiff as successor to the claim of plaintiff Harold Clemons.”

With both motions pending, the trial court conducted a pre-trial conference three days prior to the trial date. Without any objection from Cowan, the trial court granted Norma Jean Clemons’s motion for substitution. The trial court noted that Cowan was not represented by counsel and strongly cautioned him against proceeding to trial pro se, even sua sponte offering to continue the trial to allow him to hire a lawyer. Cowan, however, insisted on proceeding pro se.

On July 21, 2008, the jury trial was held as scheduled. In the course of the trial, the jury heard testimony from, inter alia, Larry Clemons, former Sheriff Johnny Bane, Norma Jean Clemons, and Cowan. Fourteen exhibits, including copies of the advertisements at issue, were entered into evidence.

At the outset of the trial, Larry Clemons testified that the publication of the advertisements caused him extreme embarrassment. Prior to publication of the ads, he said, Clemons Wrecker had had a good reputation in Smith County. He insisted that the rates he charged the County for servicing the Sheriffs Department vehicles were fair and reasonable. In particular, he noted that he charged the County the wholesaler’s “suggested retail price” for the motor oil that he used.

Former Sheriff Johnny Bane testified that he had always been satisfied with the services provided by Clemons Wrecker and that he did not think that Clemons Wrecker had overcharged the County. When the advertisements were published, Bane testified, he did a price comparison by taking his personal patrol car to several other automobile service shops in the area. From Sheriff Bane’s comparison, Clemons Wrecker’s prices were comparable to other local mechanic shops.

Norma Jean Clemons testified about statements that her deceased husband, Harold Clemons, made to her before his death. She said that Cowan’s advertisements had caused Harold Clemons to suffer stress and anxiety about the continued viability of Clemons Wrecker. She claimed that Harold Clemons’s heart attack was caused by the stress resulting from Cowan’s campaign ads.

Cowan testified on his own behalf. He asserted that the information in his campaign advertisements came from the County Mayor’s Office. However, Cowan admitted that, in making the calculations published in the ads, he made an error concerning the number of quarts of oil. He also admitted that he never compared Clemons Wrecker’s prices with other service stations, as former Sheriff Bane had done, and that he had no evidence to support the claim in the ads that oil changes could be performed for $25 less than the price Clemons Wrecker charged. Cowan explained that his ads were not directed at Clemons Wrecker, but rather were directed at former Sheriff Bane for his alleged failure to properly oversee the expenditure of taxpayer funds.

At the close of proof, the trial court charged the jury. The jury was provided the following jury verdict form:

1. Have the plaintiffs proved by a preponderance of the evidence all the necessary elements of libel?
Yes_ No_
2. Have the plaintiffs proved by a preponderance of the evidence that the defendant is guilty of intentional interference with the business of the plaintiffs
Yes_ No_
3. What amount of damages, if any, are the plaintiffs entitled to?
$-
4. Are the plaintiffs entitled to punitive damages?
Yes_ No_

When the jury returned the verdict form, it had marked “yes” in response to questions one and two, finding that “the plaintiffs” had proved by a preponderance of the evidence all the necessary elements of both claims. However, in response to question three, the jury had entered a zero, apparently finding that “the plaintiffs” were not entitled to compensatory damages. In response to question four, the jury had marked “yes,” finding that “the plaintiffs” were entitled to punitive damages.

Upon receiving the completed jury verdict form, the trial court instructed the jury that there could be no award of punitive damages without an award of compensatory damages. The jury was then sent back to continue its deliberations. Neither party objected to the trial court’s additional instruction, suggested a different instruction, or made a motion for a mistrial. When the jury returned, question three on the jury verdict form was filled out with a verdict of $10,000 in compensatory damages.

The next day, the trial was resumed for a hearing on punitive damages. After further proof and argument, the jury returned a verdict of $15,000 in punitive damages. Subsequently, the trial court entered a written judgment stating that “the plaintiffs” had proved all the necessary elements of both claims and awarding a total of $25,000 to Norma Jean Clemons and Larry Clemons.

After entry of the judgment against him, Cowan retained an attorney. Cowan’s attorney then made a motion on his behalf for a new trial on four grounds. First, Cowan argued that a claim for libel does not survive the death of a party, and thus that the trial court erred in allowing Norma Jean Clemons to be substituted for Harold Clemons, “rendering] the judgment illegal and contrary to law.” Second, Cowan asserted that, after the jury initially returned a verdict for punitive damages with no compensatory damages, the trial court erred by failing to instruct the jury as to nominal damages. Third, Cowan asserted that the trial court erred in granting a motion in limine to exclude a particular magazine from evidence prior to trial. Finally, Cowan asserted that the trial court erred in granting judgment to Norma Jean Clemons and Larry Clemons because the statements in the ads constituted protected political speech.

Cowan’s motion for a new trial was denied. Cowan now appeals.

Issues on Appeal and Standard of Review

Slightly rephrased, Cowan raises the following issues for review:

1) Whether Harold Clemons’s death pri- or to trial ended any claim that he may have had for libel;
2) Whether the trial court erred in allowing Norma Jean Clemons, surviving spouse of Harold Clemons, to be substituted as party of record for Harold Clemons;
3) Whether Cowan’s campaign advertisements were political speech, and, if so, does the evidence support the finding that Cowan knowingly printed an intentionally incorrect statement as to the amount billed to Smith County for the services provided, and without intent, does Cowan’s action qualify as tortious conduct in Tennessee;
4) Whether there was sufficient evidence of intentional misconduct to justify punitive damages;
5) Whether a joint judgment for two plaintiffs can be sustained if one of the plaintiffs claims ended upon his death prior to trial; and
6) Whether a trial court should sua sponte dismiss a case when the jury returns a verdict of liability with no damages, or alternatively, whether the trial court should instruct the jury as to nominal damages under those circumstances.

When reviewing a jury’s findings of fact in a civil dispute, this Court will set aside those findings only “if there is no material evidence to support the verdict.” Rutherford v. S. Coll. of Optometry, No. W2008-02268-COA-R3-CV, 2009 WL 5064972, at *4 (Tenn.Ct.App. Dec. 28, 2009) (citing Tenn. R.App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn.2006)). “Appellate courts shall neither reweigh the evidence nor decide where the preponderance of the evidence lies. If the record contains ‘any material evidence to support the verdict, [the jury’s findings] must be affirmed; ....’” Id. (quoting Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704-05 (Tenn.2000)) (alteration in Barnes).

In contrast, the trial court’s conclusions of law are subjected to a less deferential standard of review. Id. This Court reviews the trial court’s conclusions of law de novo, affording them no presumption of correctness. Id. (citing Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97 (Tenn.2002)).

Analysis

Cowan first asserts that Harold Clemons’s claim for libel in Tennessee did not survive his death prior to trial. In support of this contention, Cowan cites Benton v. Knoxville News-Sentinel Co., 174 Tenn. 661, 130 S.W.2d 106 (1939). Norma Jean Clemons and Larry Clemons agree with this assertion, citing Tennessee Code Annotated § 20-5-102. Therefore, we assume for purposes of this appeal that Harold Clemons’s claim for libel did not survive his death.

Because Harold Clemons’s claim for libel did not survive, Cowan asserts that the trial court erred in allowing Norma Jean Clemons, as surviving spouse of Harold Clemons, to be substituted as a party upon his death. As a result of this error, Cowan contends, the “action is a nullity and any judgement [sic] granted on behalf of this substituted Plaintiff, should be reversed, as unsupported by the Tennessee laws of liable [sic].” Cowan’s argument is predicated on the jury verdict form; he claims that “the verdicts rendered were joint verdicts rendered in favor of both Plaintiffs jointly, and from a practical standpoint it is impossible to determine the amount the Jury awarded to each party at this point.”

In response, Norma Jean Clemons and Larry Clemons point out that Harold Clemons asserted both a libel claim and a claim for tortious interference with a business relationship, and the record does not indicate whether Norma Jean Clemons was substituted on the libel claim as well as the tortious interference claim. However, even if Norma Jean Clemons was substituted on the libel claim, the Appellees contend that Cowan waived the issue by failing to object to the substitution prior to or during the trial. Moreover, they contend that Cowan waived any objection to the jury verdict form by failing to raise the issue before the trial court.

From our review of the record, Norma Jean Clemons’s motion for substitution states only that she seeks to be “substituted as plaintiff as successor to the claim of plaintiff Harold Clemons,” without specifying which claim, (emphasis added). The trial court apparently granted the motion by oral ruling at the pre-trial conference, and a written order was never entered.

In his appellate brief, Cowan cites no authority for his assertion that the trial court erred in substituting Norma Jean Clemons, and includes no citation to the technical record. This alone is sufficient to consider the issues waived. See Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn.Ct.App.2009) (quoting Bean v. Bean, 40 S.W.3d 52, 55 (Tenn.Ct.App.2000)) (“Our Courts have ‘routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of the brief as described by Rule 27(a)(7) constitutes a waiver of the issue[s] [raised].’ ”) (alteration in Chiozza).

Moreover, Cowan’s argument is in essence a challenge to the jury verdict form. He cites no place in the record in which the issue was presented to the trial court, and we have found none. The joint statement of evidence does not indicate that Cowan ever objected to the jury verdict form, and the argument is not included in his motion for a new trial. We find that this issue was not raised to the trial court below, and thus decline to consider it on appeal. Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn.2006) (citing Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.1991)).

In his brief, Cowan next asserts that “the publication complained of was political speech of a candidate for public office attempting to point out the errors of the incumbent, against whom he was running, in an attempt to show the public the incumbent’s errors in the administration of his office.” Without citation to authority or any portion of the technical record, Cowan continues as follows:

While not being able to find a Tennessee case on political free speech, relative to the tort of liable [sic] in Tennessee, the Appellant would assert that political free speech should be the most protected form of free speech and especially protected in the context of a campaign for public office. That said, Defendant would assert that the alleged libelous actions of the Defendant were political free speech and should be protected from actions under the tort of liable [sic], unless it can be clearly and convincingly shown that the Defendant willfully, stated a falsehood, which he knew was false, at the time it was printed, rather than a false statement that was printed that was simply an error.

Cowan then asserts in conclusory fashion that “the facts do not justify a verdict for liable [sic], as a matter of law and in the same vein, the Appellant would aver that the facts do not support a verdict for punitive damages.”

This Court has stated that “a ‘skeletal argument that is really nothing more than an assertion will not properly preserve a claim.’” Chiozza, 315 S.W.3d at 489 (quoting Newcomb v. Kohler Co., 222 S.W.3d 368, 400 (Tenn.Ct.App.2006)). “It is not the function of this Court to verify unsupported allegations in a party’s brief or to research and construct the party’s argument.” Id. (citing Bean, 40 S.W.3d at 56). We must conclude that Cowan has waived this issue.

Finally, Cowan argues that when the jury initially returned with a verdict for punitive damages with no compensatory damages, “the case should have been dismissed at that point and a judgment entered on behalf of the Defendant.” Presumably in the alternative, Cowan asserts that the trial court should have given the jury an instruction as to nominal damages.

Cowan again fails to cite any authority in support of these arguments. Moreover, a party who seeks to challenge “an alleged omission in the instructions given to the jury by the trial judge ... must ... point[ ] out such omission to the trial judge at trial by an appropriate request for instruction.” Tatman v. Fort Sanders Reg’l Med. Ctr., No. E2000-02163-COA-R3-CV, 2001 WL 378688, at *5-6 (Tenn.Ct.App. Apr. 16, 2001), no perm. app. (quoting Rule v. Empire Gas Corp., 563 S.W.2d 551, 554 (Tenn.1978)). Cowan points to no place in the record in which he asked the trial court for such a jury instruction. For these reasons, we must conclude that this issue is also waived.

Conclusion

The decision of the trial court is affirmed. The costs of this appeal are taxed to the Appellant Johnny Steve Cowan, and his surety, for which execution may issue if necessary.

      . Rule 10. Memorandum Opinion
      This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated case.
      Tenn. Ct.App. R. 10.

      . The joint statement of evidence contained in the record states that some of the advertisements included copies of invoices, but it does not specify which ads did so. The exhibits in the record do not indicate which advertisements included copies of the invoices.

      . The statute provides:
      (a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.
      (b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of such notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.
      (2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.
      T.C.A. § 29-24-103 (2000).

      . The record does not include a transcript of the testimony, but includes a statement of the evidence.

      . Cowan, representing himself, did not object to Mrs. Clemons's testimony about statements made by her deceased husband or to her opinion testimony about the cause of her husband’s heart attack. The Plaintiffs submitted no medical expert proof on Harold Clemons’s medical condition or the cause of his death.

      . The statute provides:
      No civil action commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff, shall abate by the death of either party, but may be revived; nor shall any right of action arising hereafter based on the wrongful act or omission of another, except actions for wrongs affecting the character, be abated by the death of the party wronged; but the right of action shall pass in like manner as the right of action described in § 20-5-106.
      T.C.A. § 20-5-102 (1994). Appellant Cowan did not cite this statute in his appellate brief.

      . Indeed, in the entirety of his ten-page appellate brief, Cowan’s counsel cites only one 1939 case and includes no citations to the technical record, in clear violation of Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure. This Court has on occasion dismissed an appeal on this basis. See Chiozza v. Chiozza, 315 S.W.3d 482 (Tenn.Ct.App.2009), no perm. app.


author: PER CURIAM.

text:
    CITY OF DALLAS, Petitioner, v. Olivia J. CARBAJAL, Respondent.
    No. 09-0427.
    Supreme Court of Texas.
    May 7, 2010.
    Thomas P. Perkins Jr., Dallas City Attorney, Patricia Medrano, Barbara E. Rosenberg, James B. Pinson, Assistant City Attorneys, for Petitioner.
    Rory Stephen Alter, Nick Maram, Nick Maram & Associates, P.C., Houston, for Respondent.
    Brian Clayton England, City of Garland, Assistant City Attorney, for Amicus Curiae City of Garland, Texas.
    William Preston Longley, Texas Municipal League, Austin, for Amicus Curiae Texas Municipal League.
    Beth Ellen Klusmann, Assistant Solicitor General, Office of the Attorney General, for Amicus Curiae State of Texas.
   PER CURIAM.

In this case, we determine whether a police report noting the perceived cause of an accident provides a governmental unit with actual notice of its fault in causing the accident. When a claimant fails to timely provide a governmental unit with formal notice of a claim, see Tex. Civ. Prao. & Rem.Code § 101.101(a), the Texas Tort Claims Act requires the governmental unit to have “actual notice that ... the claimant has received some injury,” id. § 101.101(c). In Texas Department of Criminal Justice v. Simons, we clarified that merely investigating an accident does not provide a governmental unit with actual notice — that is, with subjective awareness of its fault. See 140 S.W.3d 338, 343-48 (Tex.2004). Because the police report here was at most an initial response to the accident, we hold that the governmental unit, the City of Dallas, lacked actual notice. The provision of notice is a jurisdictional requirement in all suits against a governmental unit. Tex. Gov’t Code § 311.034. Accordingly, we reverse the judgment of the court of appeals and render judgment dismissing the case for lack of subject matter jurisdiction.

Olivia Carbajal sued the City for injuries she sustained after driving onto an excavated road. A Dallas police officer who responded to the accident filed a written report describing the accident, in relevant part, as follows:

Complainant] said that she saw the barricades but none were blocking what she thought was a clear way to get on the freeway. Comp[lainant] said that before she knew it she had driven her vehicle] into a gap on the street. [I] observed at the listed offense loc[ation] that there were no barricades blocking the gap in the road.

Summarizing the incident, the report states that Carbajal drove her “vehpcle] into [a] gap in [the] street [that] was not properly blocked.” Approximately a year after the accident, Carbajal filed this suit against the City. It is undisputed that Carbajal did not provide formal notice as required by § 101.101(a). Carbajal contends, however, that the police report provided the City with subjective awareness of the claim, thereby establishing actual notice under § 101.101(c). Arguing that the report did not provide actual notice, the City filed a plea to the jurisdiction. The trial court denied the plea, and the court of appeals affirmed. 278 S.W.3d 802.

A plea to the jurisdiction challenges a trial court’s subject matter jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (per curiam). Whether a court has subject matter jurisdiction is a question of law that we review de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

In Cathey v. Booth, we held that governmental entities have actual notice when they have “knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.” 900 S.W.2d 339, 341 (Tex.1995) (per curiam). In Simons, we clarified the meaning of the second requirement:

"What we intended in Cathey by the second requirement ... was that a governmental unit have knowledge that amounts to the same notice to which it is entitled by section 101.101(a). That includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury_It is not enough that a governmental unit should have investigated an incident ..., or that it did investigate, perhaps as part of routine safety procedures, or that it should have known from the investigation it conducted that it might have been at fault. If a governmental unit is not subjectively aware of its fault, it does not have the same incentive to gather information that the statute is designed to provide, even when it would not be unreasonable to believe that the governmental unit was at fault.

140 S.W.3d at 347-48. In this passage, and several others, we made clear that merely investigating an accident is insufficient to provide actual notice. See, e.g., id. at 347 (“Cathey cannot fairly be read to suggest that a governmental unit has actual notice of a claim if it could or even should have learned of its possible fault by investigating the incident.”); id. at 348 (“[A] governmental unit cannot acquire actual notice merely by conducting an investigation, or even by obtaining information that would reasonably suggest its culpability. The governmental unit must have actual, subjective awareness of its fault in the matter.”).

Although both parties agree that the road was not properly blocked, the report here did not provide the City with subjective awareness of fault because it did not even imply, let alone expressly state, that the City was at fault. The report only describes what apparently caused the accident (missing barricades). It does not say who failed to erect or maintain the barricades. Carbajal ignores the possibility that a private contractor or another governmental entity (such as the county or state) could have been responsible for the road’s condition. Indeed, after investigating the accident, the City determined that the Texas Department of Transportation was at fault. Simply put, the police report here is no more than a routine safety investigation, which is insufficient to provide actual notice. See Simons, 140 S.W.3d at 347-48.

By holding that the officer’s “perception of the cause of the accident” sufficed to provide actual notice, 278 S.W.3d at 806, the court of appeals overlooked the policy underlying actual notice: “ ‘to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial,’ ” Simons, 140 S.W.3d at 347 (quoting Cathey, 900 S.W.2d at 341). When a police report does not indicate that the governmental unit was at fault, the governmental unit has little, if any, incentive to investigate its potential liability because it is unaware that liability is even at issue.

Because the police report here did not provide actual notice, we grant the petition for review and, without hearing oral argument, Tex.R.App. P. 59.1, reverse the court of appeals’ judgment and render judgment dismissing the case for lack, of subject matter jurisdiction.

      . We do not answer whether the City would have had actual notice if the report had expressly stated that the City was at fault.