text:
    Lawrence DUNCAN, Appellant, v. ACCENT MARKETING, LLC and Division of Employment Security, Respondents.
    No. ED 94518.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 28, 2010.

      John Ammann, St. Louis, MO, for appellant.
    Accent Marketing, Farmington, pro se.
    Jeannie Mitchell, Jefferson City, MO, for respondents.
   NANNETTE A. BAKER, Judge.

Introduction

Lawrence Duncan (“Claimant”) appeals from the order of the Labor and Industrial Relations Commission (“Commission”) affirming the decision of the Appeals Tribunal (“Tribunal”), which found that Claimant was disqualified from receiving unemployment benefits because he committed misconduct connected with work as defined by Section 288.030.1(23). Claimant contends the Commission erred in finding that his actions constituted misconduct. We reverse and remand.

Factual and Procedural Background

Claimant was discharged from his job with Accent Marketing Services, L.L.C. (“Employer”) on September 9, 2009. Upon discharge, Claimant filed a claim for unemployment benefits, which a deputy for the Division of Employment Security denied. The deputy determined that Employer discharged Claimant for misconduct connected with work, thereby disqualifying Claimant from receiving unemployment benefits. Claimant appealed the deputy’s decision to the Tribunal. The Tribunal held a hearing via a telephone conference in which Claimant and his immediate supervisor, Tammy Riddell, testified. The following relevant facts were presented to the Tribunal during the hearing.

Claimant was employed from March 31, 2008 to September 9, 2009 as a customer service representative (“Representative”) for Employer. Employer provides call center services for various clients, one of whom is Sprint. Claimant’s job responsibilities included taking inbound calls from Sprint customers and assisting the customers in resolving service related issues.

Employer requires its representatives to use a computer based system called Knowledge Management System (“KMS”) when assisting Sprint customers. KMS allows representatives to search within the system for instructive documents that assist the representatives in identifying solutions to the caller’s issues. Throughout his employment, Claimant demonstrated an ability to adequately use KMS. Claimant received multiple positive performance reviews, pay raises, and awards throughout his employment with Employer. Prior to September 1, 2009, Employer did not have any significant problems with Claimant’s job performance.

On September 1, 2009, Claimant received a verbal warning from Employer for failing to perform troubleshooting steps as outlined by KMS while assisting a Sprint customer. Claimant instructed the customer to go to a Sprint store to have the issue resolved. Claimant felt the customer would be better served by going to a store so someone could see what was wrong with the phone instead of troubleshooting the issue over the phone. Employer also warned Claimant for allowing the customer to experience several pei'iods of silence during the call and for failing to “show empathy” to the customer.

On September 3, 2009, Claimant received a written warning for failing to use KMS during a call. Claimant signed the warning, which stated, “failure to improve may result in further disciplinary action up to and including termination.” Following this warning, Claimant met with two upper level management personnel about his failure to properly use KMS.

On September 5, 2009, Claimant received another written warning for failing to access a relevant KMS document while assisting a customer. Claimant used KMS during the call but did not access the document that was most relevant to the customer’s issue. Finally, on September 9, 2009, Employer terminated Claimant for two reasons. First, Claimant failed to follow steps within the KMS document before transferring a call to the technical department. Second, Claimant did not call a customer back after the call was disconnected. Employer’s policy required representatives to call a customer back if a call was disconnected.

Following the hearing, the Tribunal found that Employer discharged Claimant for failing to perform his duties despite several warnings by Employer. Specifically, the Tribunal found that Claimant failed to use KMS on several occasions despite displaying an ability to adequately use the system. Additionally, the Tribunal found that on the date of his discharge, Claimant did not use KMS in a troubleshooting situation prior to transferring a caller to the technical department and that Claimant, in violation of Employer’s policy, did not recontact a customer after the call was disconnected. The Tribunal upheld the deputy’s determination that Claimant committed misconduct connected to work, stating:

The claimant had previous warnings about the proper use of the KMS system. On the date of his discharge, the claimant failed to use the KMS system and also failed to follow the employer’s policy regarding the re-contacting of a disconnected caller. These repeated failures to follow the employer’s policies demonstrate negligence to such a degree as to manifest culpability.

The Commission affirmed the decision of the Tribunal and adopted the Tribunal’s decision as its own. This appeal follows.

Standard of Review

This court may modify, reverse, remand for rehearing, or set aside the decision of the Commission when: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant the making of the award. Section 288.210 RSMo.2000.

Absent a showing of fraud, we view the factual findings of the Commission as conclusive so long as they are supported by competent and substantial evidence. Section 288.210; Ragan v. Fulton State Hosp., 188 S.W.3d 473, 474 (Mo.App. E.D.2006). In determining whether competent and substantial evidence was presented, we examine the evidence in the record as a whole. Scrivener Oil Co., Inc. v. Div. of Employment Sec., 184 S.W.3d 635, 638 (Mo.App. S.D.2006). We are not bound by the Commission’s conclusions of law or its application of the law to the facts. Korkutovic v. Gamel Co., 284 S.W.3d 653, 656 (Mo.App. E.D.2009).

Discussion

In Claimant’s sole point on appeal, he claims the Commission erred in affirming the decision of the Tribunal finding that Claimant committed misconduct connected with work. Claimant argues his conduct did not amount to misconduct. We find the facts found by the Commission do not support the Commission’s conclusion that Claimant’s actions constituted misconduct.

Generally, an employee bears the burden of proving eligibility for unemployment compensation benefits. Frisella v. Deuster Elec. Inc., 269 S.W.3d 895, 899 (Mo.App. E.D.2008). However, when an employer claims an employee was discharged for misconduct, the employer must show by a preponderance of the evidence that the employee willfully or intentionally disregarded or violated the employer’s rules. Scrivener, 184 S.W.3d at 641. The determination of whether an employee’s actions constitute misconduct connected with work is a question of law which we review de novo. Korkutovic, 284 S.W.3d at 658.

A claimant may be disqualified from receiving unemployment benefits upon a finding that the claimant was discharged for misconduct connected with the claimant’s work. Section 288.050.2. Misconduct is defined as:

An act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Section 288.030.1(23). “Poor workmanship, lack of judgment, or the inability to do the job do not disqualify a claimant from receiving benefits on the basis of misconduct.” Williams v. Enterprise Rent-A-Car Shared Servs., LLC, 297 S.W.3d 139, 144 (Mo.App. E.D.2009). “[Tjhere is a vast distinction between conduct that would justify an employer in terminating an employee and conduct that is misconduct for purposes of denying unemployment benefits.” Id.

To satisfy Section 288.030.1(23), the Commission must find that a claimant’s conduct was willful. See Wieland v. St. Anthony’s Med. Ctr., 294 S.W.3d 77, 79 (Mo.App. E.D.2009); Scrivener, 184 S.W.3d at 641. Even where negligence is alleged as the basis for misconduct, there must be a showing of willful intent. Wieland, 294 S.W.3d at 79. Without evidence that the claimant deliberately or purposefully erred, the claimant cannot properly be found to have committed an act of misconduct. Frisella, 269 S.W.3d at 899. Furthermore, multiple violations of an employer’s policy, without a showing of willfulness, do not disqualify a claimant from receiving unemployment benefits. See Williams, 297 S.W.3d at 141-44 (sixteen tardies in one year held not to be misconduct because tardiness was not willful); Frisella, 269 S.W.3d at 899 (two violations of employer’s policy was not misconduct without a showing of willfulness).

In the present case, the Commission found that Claimant’s repeated errors “demonstrate[ed] negligence to such a degree as to manifest culpability.” While the Commission determined that Claimant’s negligence was the basis of misconduct, they did not find that Claimant’s actions were willful. Wieland, 294 S.W.3d at 79. We find no evidence in the record that Claimant deliberately or purposefully erred.

The Commission based its determination that Claimant committed misconduct on the facts that Claimant failed to follow Employer’s KMS policy and that he failed to call a customer back after a disconnected call. However, the Commission did not find any facts that suggest Claimant’s inadequate use of KMS or his failure to call the customer back was deliberate or purposeful. An employee’s failure to follow an employer’s instructions is not necessarily grounds for finding misconduct. Scrivener, 184 S.W.3d at 640.

In Frisella v. Deuster Elec. Inc., we held that an employee’s failure to adhere to his employer’s policy was not misconduct without evidence that the failure was willful. 269 S.W.3d at 899-900. There, the employer only presented evidence that the claimant failed to perform assigned tasks and that he failed to follow the employer’s instructions to call and report problems at the job site. Id. at 899. This court found that although Claimant’s failure to follow the employer’s instructions reflected poor workmanship or lack of judgment, the employer never proved that Claimant willfully committed the errors or omissions. Id. We specifically stated, “[ajbsent evidence that Claimant deliberately or purposefully committed the mistakes, he cannot be found to have committed an act of misconduct.” Id. at 900.

Here, just as in Frisella, the facts found by the Commission indicate only that Claimant violated Employer’s KMS policy despite being instructed to follow the policy and that he failed to call a customer back. These violations may reflect poor workmanship or lack of judgment, but the facts found by the Commission do not suggest that Claimant’s failure to follow the KMS policy or to call the customer back was deliberate or purposeful. Without such evidence, as we stated in Frisella, we cannot find that Claimant’s violations of Employer’s policy were willful.

In Comeaux v. Convergys Customer Mgmt. Group, Inc., we found that a claimant who had received warnings for his poor job performance did not commit misconduct when he later violated his employer’s policy by being rude to a potential customer during a phone call. 310 S.W.3d 759, 761-63 (Mo.App. E.D.2010). We found that though the claimant’s actions could be viewed as inappropriate, the employer did not present any evidence to indicate that his behavior was anything more than a lack of judgment. Id. at 763. Here, as in Comeaux, the Commission found that Claimant knew the KMS policy and violated it even after he was warned by Employer about not following the policy. These facts suggest that Claimant’s actions may have been inappropriate and may reflect a lack of judgment, but these facts do not support a finding that Claimant’s actions were deliberate or purposeful. Because the record lacks any evidence that Claimant deliberately or purposefully failed to follow the KMS policy or call the customer back, we cannot find that Claimant committed misconduct. Frisella, 269 S.W.3d at 899

Accordingly, we find the Commission erred in affirming the Tribunal’s decision that Claimant committed misconduct connected with work as defined by Section 288.030.1(23) because the facts relied on by the Commission, which we accept as conclusive, do not support a finding that Claimant willfully violated Employer’s rules or standards. Claimant’s sole point on appeal is granted.

Conclusion

For the above stated reasons, we reverse the decision of the Commission and remand this cause for further proceedings consistent with this opinion.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., concur.

      . All statutory references are to RSMo. Supp. 2006, unless otherwise indicated.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the ESTATE OF: L.E.S., Minor.
    No. ED 93746.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 28, 2010.
    Erik Sanfilippo, Bonne Terre, MO, pro se.
    Janet Loucks, Piedmount, MO, pro se.
    Kevan Karraker, Farmington, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Erik Sanfilippo (“Father”) appeals from a judgment of the Probate Division of St. Francois County Circuit Court denying his motion to remove Janet Loucks (“Loucks”) as one of the co-guardians of his son, L.E.S. Father claims five points on appeal. In his first two points, Father claims that the trial court erred because it lacked jurisdiction to issue the letters of co-guardianship for two reasons. Father also claims that the trial court erred by denying his motion to remove Loucks because the decision was against the weight of the evidence. Father’s fourth and fifth points claim that the trial court abused its discretion in assessing fees for the Guardian Ad Litem (“GAL”) against him.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Elliott SIDNER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93905.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 28, 2010.
    Timothy Forneris, Asst. Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J, ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Elliott Sidner (Sidner) appeals the denial of his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. After a bench trial, Sidner was convicted of trafficking in the second degree and misdemeanor possession of a controlled substance of marijuana. Sidner was sentenced as a prior and persistent drug offender to ten years of imprisonment without the possibility of probation or parole. This Court affirmed Sidner’s convictions in State v. Sidner, 217 S.W.3d 344 (Mo.App. E.D.2007). We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Demetrius D. VAUGHN, Appellant.
    No. ED 93945.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 28, 2010.
    Andrew E. Zleit, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Demetrius Vaughn (Vaughn) appeals from the trial court’s judgment entered upon his conviction, following a jury trial, of first-degree robbery, in violation of Section 569.020, RSMo 2000. The trial court sentenced Vaughn to twenty-five years of imprisonment. Vaughn argues on appeal that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence to support a conviction of first-degree robbery, and the trial court erred in overruling his motion to dismiss due to the State of Missouri’s (State’s) failure to bring Vaughn to trial within 180 days after he made a demand for the disposition of detainers, in violation of the Interstate Agreement on Detainers (IAD). Finding no error, we affirm the trial court’s judgment.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


text:
    Timothy FENDLER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94393.
    Missouri Court of Appeals, Eastern District.
    Dec. 28, 2010.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Mary H. Moore, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Timothy Fendler appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(2).


author: WILLIAM C. KOCH, JR., J.,

text:
    Steven WILLIAMS v. UNITED PARCEL SERVICE et al.
    Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, at Nashville.
    June 28, 2010 Session.
    Sept. 28, 2010.

      David T. Hooper, Brentwood, Tennessee, for the appellants, United Parcel Service and Liberty Mutual Insurance Company.
    William J. Butler, Lafayette, Tennessee, for the appellee, Steven Williams.
   MEMORANDUM OPINION

WILLIAM C. KOCH, JR., J.,

delivered the opinion of the Court,

in which, JON KERRY BLACKWOOD and WALTER C. KURTZ, SR., JJ., joined.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his light knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry (“MIR”) report prepared in accordance with Tenn.Code Ann. § 50-6-204(d)(5) (Supp.2009). The trial court sustained the employee’s objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee’s left knee was compensable and awarded the employee 27% permanent partial impairment to each leg. On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee’s right knee was a new, com-pensable injury, and by basing its award on the impairment rating of the employee’s physician. We affirm the judgment.

I.

Steven Williams, who is currently sixty years of age, began working for United Parcel Service, Inc. (“UPS”) when he was twenty-nine years old. He is a high school graduate, and, while he possesses a commercial driver’s license, he has no other special training or certifications. For the past twenty-five years, Mr. Williams has worked as a “feeder driver.” The job requires him to lift packages up to seventy pounds, to climb steps to reach the cab of his truck, and to move a heavy dolly to hook two trailers to tractor-trailer rigs four times a day. Mr. Williams climbs in and out of the tractor at least twenty times each work day.

Mr. Williams sustained a job-related injury to his right knee in 2003. When Dr. Kurt Spindler performed arthroscopic surgery on Mr. Williams’s knee in 2004 to repair a meniscal tear and to smooth down the cartilage, he noted that Mr. Williams already had mild to moderate arthritis underneath his knee cap. Mr. Williams returned to work within a few weeks following the surgery. The surgery did not affect either Mr. Williams’s job performance or his leisure activities. Dr. Spindler determined that Mr. Williams had reached his maximum medical improvement by June 2004.

Dr. Spindler assigned Mr. Williams a 5% impairment to his right leg. Mr. Williams settled his workers’ compensation claim with UPS in 2005. The agreement provided him with the right to obtain additional medical care from Dr. Spindler for the 2003 injury.

On April 18, 2006, Mr. Williams injured his left knee while helping a co-worker load a trailer. His left foot became wedged between two packages, and his left knee “popped” when he pivoted to pick up a package. He reported the injury to his supervisor, and he was eventually referred to Dr. Spindler. Mr. Williams continued to work in a light duty status while awaiting a decision and authorization for surgery on his left knee. During this period, Mr. Williams favored his right leg and foot over his newly injured left leg.

Dr. Spindler performed arthroscopic surgery on Mr. Williams’s left knee in May 2006. Mr. Williams missed nearly four months of work. However, Dr. Spindler eventually permitted him to return to work without restrictions. Dr. Spindler concluded that Mr. Williams reached his maximum medical improvement in May 2007.

Dr. Spindler continued to treat Mr. Williams until January 2009. During this period, Dr. Spindler checked the progress of the left knee and sometimes drained fluid or injected steroid medications to reduce inflammation. On these visits, Mr. Williams complained about swelling, pain, and buckling of the left knee. At an appointment in May 2007, Dr. Spindler asked Mr. Williams to rate his own knees on a scale of 1% to 100% based on his own subjective assessment of the condition of his knees. Mr. Williams stated that his right knee felt 85% and that his left knee felt 60%. Dr. Spindler then assigned a 5% anatomical impairment to the lower left extremity. However, during his deposition, he stated that he believed his earlier rating was erroneous and should have been 10% to the lower left extremity.

Mr. Williams and Dr. Spindler have different recollections regarding the condition of his right knee following the 2006 injury to Mr. Williams’s left knee. Dr. Spindler did not recall that Mr. Williams complained about the injury to his left knee aggravating the condition of his right knee. Mr. Williams, however, recalled that he complained to Dr. Spindler on several occasions that his right leg was bothering him because of swelling, pain, and increased weakness. He testified that he was favoring his left knee and that, by doing so, he was causing overuse and pain to his right knee. With regard to his condition following the surgery to his left knee, Mr. Williams also testified that he had difficulty pushing dollies at work, that both of his knees would occasionally buckle, and that he was required to ice his right knee to reduce the swelling. Finally, Mr. Williams testified that he became concerned for his safety while driving because of the pain caused by using his left foot to engage and disengage the clutch and that he feared that this might cause either or both of his knees to buckle.

Dr. Robert Landsberg, an orthopedic surgeon, performed an independent medical evaluation at the request of Mr. Williams’s counsel. He testified in his deposition that both of Mr. Williams’s knees had pseudolaxity, meaning that the ligaments were so loose that they felt torn. He stated that Mr. Williams’s right calf and thigh had atrophied more than the left calf and thigh and that there was patello-femoral crepitus (audible clicking and popping) in both knees.

Dr. Landsberg also diagnosed both of Mr. Williams’s knees with bilateral post-traumatic arthritis. He believed that Mr. Williams’s knee problems were clearly due to the work-related injuries and that the right knee deterioration was advanced and progressed by the 2006 work injury to the left knee. Dr. Landsberg opined that the injury to Mr. Williams’s left knee caused him to rely on his right knee, thereby worsening and further injuring his right knee. Dr. Landsberg assigned an 18% anatomical impairment to each leg.

Prior to Dr. Spindler’s August 24, 2009 deposition, UPS pursued an additional opinion concerning the extent of Mr. Williams’s impairment through the Medical Impairment Registry (“MIR”). Dr. James Talmage examined Mr. Williams on September 8, 2009 and filed a report on September 9, 2009 concluding that Mr. Williams had a 12% anatomical impairment rating to the left leg. The director of the Department of Labor and Workforce Development’s MIR program approved the report and mailed it to the parties on September 16, 2009. Counsel for UPS filed the report with the clerk and master on September 21, 2009, the day before the trial. The trial court sustained Mr. Williams’s objection to the introduction of the report because the report was inadmissible hearsay and because the “unfairness and timeliness of the report was bothersome.”

The trial court accredited Dr. Lands-berg’s testimony as to causation and found that Mr. Williams was credible and truthful. It found that Mr. Williams had com-pensable injuries to both knees due to the 2006 work-related accident and that the right knee injury developed as a result of overuse caused by the left knee injury. Because Mr. Williams had retired voluntarily prior to the trial, the parties agreed that the award of benefits was subject to the one and one-half times impairment cap contained in Tenn.Code Ann. § 50-6-241(d)(1)(A) (Supp.2009). Accordingly, the trial court adopted Dr. Landsberg’s impairment rating of 18% to each leg and awarded a 27% permanent partial disability to each leg.

UPS contends on appeal that the trial court erred by holding that the 2006 injury to the left knee and subsequent over-reliance on the right knee caused a new com-pensable injury to the right knee. UPS also insists that the trial court erred by excluding the MIR report. In the alternative, UPS contends that the trial court erred by adopting Dr. Landsberg’s impairment rating instead of Dr. Spindler’s rating.

II.

Courts reviewing an award of workers’ compensation benefits must conduct an in-depth examination of the trial court’s factual findings and conclusions. Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn.2007). When conducting this examination, Tenn.Code Ann. § 50-6-225(e)(2) (2008) requires the reviewing court to “[rjeview ... the trial court’s findings of fact ... de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.” The reviewing court must also give considerable deference to the trial court’s findings regarding the credibility of the live witnesses and to the trial court’s assessment of the weight that should be given to their testimony. Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn.2008); Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 167 (Tenn.2002). However, the reviewing courts need not give similar deference to a trial court’s findings based upon documentary evidence such as depositions, Orrick v. Bestway Trucking, Inc., 184 S.W.3d 211, 216 (Tenn.2006); Bohanan v. City of Knoxville, 136 S.W.3d 621, 624 (Tenn.2004), or to a trial court’s conclusions of law, Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.2003).

III.

We turn first to the issue regarding the admissibility of Dr. Talmage’s report. UPS insists that the trial court erred by excluding the report and that, had the report been admitted into evidence, it would have created a rebuttable presumption that Mr. Williams had a 12% impairment to his left leg. UPS further argues that Mr. Williams would have been entitled to 18% permanent partial disability, rather than 27%. Mr. Williams asserts that the trial court properly excluded Dr. Tal-mage’s report.

Decisions by trial courts regarding the admission or exclusion of evidence are discretionary. Accordingly, we must determine whether the exclusion of Dr. Tal-mage’s report certified by the Department of Labor and Workforce Development was an abuse of discretion. See State v. Lewis, 235 S.W.3d 136, 141 (Tenn.2007); Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn.2005); Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn.2004); State v. Du Bose, 953 S.W.2d 649, 652 (Tenn.1997). We have determined that it was not based on the facts of this case.

A.

The MIR report procedure in Tenn.Code Ann. § 50-6-204(d)(5) provides a process for obtaining a definitive medical examination by an independent medical examiner regarding the extent of an injured employee’s impairment. As required by Tenn.Code Ann. § 50-6-204(d)(6), the Commissioner of the Department of Labor and Workforce Development has promulgated a comprehensive set of rules (1) establishing the qualifications for physicians to be included on the registry, (2) providing procedures for requesting an MIR evaluation, (3) defining the requirements for conducting the evaluations, (4) prescribing the form in which the recommendations must be submitted, (5) establishing the time within which the actions required by the statute must be taken, (6) setting the physicians’ fees for the evaluations, and (7) prescribing the procedures for the review, acceptance, and distribution of the MIR reports by the Commissioner.

As a general matter, written reports of medical evaluations conducted for the purpose of workers’ compensation litigation are hearsay. Thus, in accordance with Tenn. R. Evid. 802, they are not admissible unless as provided by the Tennessee Rules of Evidence or by law. Arias v. Duro Standard Prods., 303 S.W.3d 256, 262 (Tenn.2010). While an MIR report prepared in accordance with Tenn. Code Ann. § 50—6—204(d)(5) does not qualify as an exception to the hearsay rale as a record of a regularly conducted activity under Tenn. R. Evid. 803(6), see generally Arias v. Duro Standard Prods., 303 5.W.3d at 263, we have determined that these reports are admissible as a matter of law in the same way that reports of court-appointed neutral physicians and statements of a physician’s opinion on Form C-32 are admissible.

The statutes and rules governing MIR reports reflect that the General Assembly’s purpose was to provide an efficient method for presenting neutral, objective opinions regarding an employee’s impairment to aid trial courts when the parties disagree regarding the extent of the impairment. If the requirements in Tenn.Code Ann. § 50 — 6—405(d)(5) and the regulations promulgated thereto are met, the report becomes a self-authenticating official document certified by the Department of Labor and Workforce Development. The document itself gives rise to a rebuttable presumption that the impairment rating in the document is “the accurate impairment rating.” Tenn.Code Ann. § 50-60-204(d)(5). Accordingly, properly prepared and certified MIR reports should not be excluded as hearsay because their admissibility is otherwise provided by law.

The MIR report containing Dr. Tal-mage’s opinion regarding the extent of Mr. Williams’s impairment was properly prepared and certified in accordance with Tenn.Code Ann. § 50-6^405(d)(5) and the applicable regulations. Accordingly, it was admissible by law, and the trial court erred by excluding it on the ground that it was inadmissible hearsay.

B.

UPS also takes issue with the trial court’s decision to exclude the MIR report on the ground that it had not been timely filed. It asserts that the statute does not contain explicit filing deadlines and that the manner in which it requested the MIR report was timely and reasonable. We have determined that the trial court did not err by excluding the MIR report on the grounds of timeliness based on the factual circumstances in this case.

By January 2008, the parties were aware of the disparity between the opinions of Drs. Swindler and Landsberg regarding Mr. Williams’s impairment rating. Mr. Williams filed suit seeking workers’ compensation benefits in August 2008, and, in April 2009, the trial court set the trial date for September 22, 2009. Dr. Lands-berg was not deposed until July 15, 2009, and it was only after his deposition was taken — approximately one month before the scheduled trial date — that UPS decided to initiate the process to obtain an MIR report.

It is undisputed that Dr. Talmage did not examine Mr. Williams until two weeks before the scheduled trial date, that the trial date was less than one week away when the Department of Labor and Workforce Development approved Dr. Tal-mage’s report, and that the report was not filed with the trial court until the day before the trial. In the best of circumstances, the parties were aware of the conclusions in Dr. Talmage’s report for approximately one week before trial.

A Special Workers’ Compensation Appeals Panel recently addressed the means by which a party may rebut the presumption of correctness which attaches to an impairment rating in an MIR report. In Tuten v. Johnson Controls, Inc., No. W2009-01426-SCWC-MWC, 2010 WL 3363609 (Tenn.Workers Comp.Panel Aug. 25, 2010), the panel stated: “A straightforward interpretation of [the clear and convincing evidence] standard favors, or even requires, the presentation of affirmative evidence that an MIR physician had used an incorrect method or an inappropriate interpretation of the AMA guidelines to overcome the statutory presumption.” Tuten v. Johnson Controls, Inc., No. W2009-01426-SCWC-MWC, at *6, 2010 WL 3363609 (Tenn.Workers Comp.Panel Aug. 25, 2010).

Another Special Workers’ Compensation Appeals Panel recently held that an employer’s request for a medical examination of an employee, made pursuant to Tenn. Code Ann. § 50 — 6—204(d)(1), must be reasonable in light of the surrounding circumstances. Myers v. Vanderbilt Univ., No. M2008-02009-WC-R3-WC, 2010 WL 1854141, at *5 (Tenn.Workers Comp.Panel May 11, 2010); see also Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 637 n. 4 (Tenn.2008). A request can be made at such a late point in time that it is unreasonable in light of the court’s docket and the potential unfairness to the employee due to inadequate time to address the results of the examination. See Myers v. Vanderbilt Univ., 2010 WL 1854141, at *7.

Here, the fact that the MIR report was made available to opposing counsel and the trial court just days before trial made it impractical, and perhaps impossible, for Mr. Williams’s counsel to develop evidence to rebut the presumption of the MIR report’s accuracy by clear and convincing evidence. Thus, consistent with the holdings in Myers and Tuten, the trial court’s decision to exclude the MIR report in this case was appropriate in light of the potential unfairness to Mr. Williams resulting from the lack of a reasonable opportunity to gather affirmative evidence to rebut the results of the examination. Accordingly, the trial court did not abuse its discretion by excluding the MIR report in this case on the grounds that it was not timely.

IV.

UPS also contends that the trial court erred by finding that Mr. Williams’s over-reliance on his right knee following the 2006 surgery on his left knee caused a new, compensable injury. Dr. Landsberg testified that if Mr. Williams had not injured his left knee, he would not have had to put undue stress on the right knee and that it was the undue stress on the right knee that led to its advanced deterioration. Dr. Spindler testified that Mr. Williams never expressed significant concerns about his light knee, but Mr. Williams maintained that he complained of the pain in his right knee on several occasions. In testimony, Mr. Williams described the deterioration of his right knee, as well as the extra pressure he placed on that knee in the few weeks leading up to his left knee surgery.

All reasonable doubts as to the causation of an injury and whether the injury arose out of the employment should be resolved in favor of the employee. Phillips v. A & H Constr. Co., 134 S.W.3d 145, 150 (Tenn.2004); Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn.1997); White v. Werthan Indus., 824 S.W.2d 158, 159 (Tenn.1992). We have “consistently held that an award may properly be based upon medical testimony to the effect that a given incident ‘could be’ the cause of the employee’s injury, when there is also lay testimony from which it reasonably may be inferred that the incident was in fact the cause of the injury.” Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d at 692; see also Long v. Tri-Con Indus., Ltd., 996 S.W.2d 173, 177 (Tenn.1999); Jones v. Hartford Accident & Indent. Co., 811 S.W.2d 516, 521 (Tenn.1991) (quoting Tindall v. Waring Park Ass’n, 725 S.W.2d 935, 938 (Tenn.1987)); P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 794 (Tenn.1978); American Ins. Co. v. Ison, 538 S.W.2d 382, 385 (Tenn.1976).

In addition, a subsequent injury, whether in the form of an aggravation of the original injury or a new and distinct injury, is compensable if it is the “direct and natural result” of a compensable injury. Rogers v. Shaw, 813 S.W.2d 397, 399-400 (Tenn.1991) (quoting 1 A. Larson, The Law of Workmens’ Compensation § 13.11 (1990)). An injured worker may recover for a new injury or an aggravation of a compensable injury resulting from medical treatment on the theory that “the initial injury is the cause of all that follows.” McAlister v. Methodist Hosp. of Memphis, 550 S.W.2d 240, 245 (Tenn.1977).

In support of the trial court’s ruling, Mr. Williams points to Dr. Landsberg’s deposition and report, as well as his own assertions and observations during his testimony about the condition of his knees. UPS, on the other hand, contends that the absence of references to Mr. Williams’s right knee in Dr. Spindler’s record of his fourteen visits with the patient strongly points to evidence of only one compensable injury to the left knee. UPS also asserts Dr. Spindler, the treating physician, had a better understanding and familiarity with Mr. Williams’s condition than Dr. Landsberg, who examined him on only two occasions. In addition, UPS contrasts Dr. Spindler’s academic appointment as Professor of Orthopedics at Vanderbilt University to Dr. Landsberg’s lack of academic involvement as an additional reason to give greater weight to Dr. Spindler’s opinions.

The trial court chose to credit Dr. Landsberg’s theory of causation and specifically indicated that it believed Mr. Williams was credible and truthful. Our review of the entire record leads us to the conclusion that the trial court could have reasonably ruled in favor of either party on this issue. Therefore, we are unable to find that the evidence preponderates against the trial court’s ruling on this issue.

V.

Finally, UPS contends that the trial court erred in crediting Dr. Landsberg’s impairment rating of 18% to the left leg over Dr. Spindler’s 10% rating. The arguments made by the parties on this issue are essentially the same as those made in connection with the compensability of the right knee injury. For the same reasons discussed above, we conclude that the evidence does not preponderate against the trial court’s decision concerning this issue.

VI.

We affirm the judgment of the trial court and remand the case for whatever further proceedings may be required. We also tax the costs of this appeal to United Parcel Service and Liberty Mutual Insurance Company and their sureties for which execution, if necessary, may issue.

ORDER

It appears to the Court that the judgment was filed in this matter on September 28, 2010, in which the Panel’s findings of fact and conclusions of law were adopted and affirmed and the decision of the Panel made the judgment of the Court. The Court directs the publication of the opinion of the Special Workers’ Compensation Appeals Panel at Nashville, June 28, 2010 Session. The September 28, 2010 opinion shall be replaced with the opinion accompanying this order.

JUDGMENT

PER CURIAM.

This case is before the Court upon the entire record, including the order of referral to the Special Workers’ Compensation Appeals Panel, and the Panel’s Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.

Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and

It is, therefore, ordered that the Panel’s findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.

Costs will be paid by United Parcel Service and Liberty Mutual Insurance Company and their sureties, for which execution may issue if necessary.

      . Mr. Williams testified he led with this right foot when he climbed stairs or got into trucks and that he also pushed off with his right leg when hooking up dollies.

      . Dr. Spindler testified: “[W]hether he mentioned it in passing or not, and I can’t tell you, but it wasn’t a point that I wrote it down that it was a big problem.”

      . Tenn.Code Ann. § 50-6-204(d)(5) states that "[t]he written opinion as to the permanent impairment rating given by the independent medical examiner pursuant to this subdivision (d)(5) shall be presumed to be the accurate impairment rating; provided, however, that this presumption may be rebutted by clear and convincing evidence to the contrary.”

      . Tenn. Comp. R. & Regs. 0800-02-20-.01 through 0800-02-20-.17 (Apr.2006).

      . Tenn.Code Ann. § 50 — 6—204(d)(9).

      . Tenn.Code Ann. § 50-6-235(c).

      . See Tenn. R. Evid. 901(b)(7), (10).


author: CHARLES D. SUSANO, JR., J.,

text:
    Stephen S. PATTERSON, II v. SUNTRUST BANK.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Assigned on Briefs March 16, 2010.
    April 30, 2010.
    Permission to Appeal Denied by Supreme Court Nov. 15, 2010.

      Michael L. Powell, Knoxville, Tennessee, for the appellant, SunTrust Bank.
    Gerald C. Russell, Rockford, Tennessee, for the appellee, Stephen S. Patterson, II.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the Court,

in which D. MICHAEL SWINEY and JOHN W. McCLARTY, JJ., joined.

Stephen S. Patterson, II, filed a complaint against SunTrust Bank arising out of unauthorized charges made against his checking account with a debit card alleged to have been stolen. When SunTrust failed to timely respond to the complaint, Patterson moved for a default judgment. Following a hearing and the filing of briefs, the trial court granted the motion. The court later denied SunTrust’s motion for relief from the court’s order, which order recited that “[t]he plaintiff is granted a judgment by default.” In the “judgment by default” order, the court had not addressed the plaintiffs request for damages. On a subsequent date, the case proceeded to a hearing on the issue of damages. At the conclusion of the hearing, the court awarded Patterson damages of $32,937.44. On appeal, SunTrust contends that the trial court erred in entering a default judgment and in failing to set aside that judgment. We vacate the trial court’s final judgment. Case remanded for further proceedings.

I.

Patterson filed his complaint on August 23, 2007. The record reflects that the summons and a copy of the complaint were served on SunTrust the next day. On October 15, 2007 — no answer or other responsive pleading having been filed — Patterson moved for a judgment by default. By a separate filing, he served SunTrust with notice that there would be a hearing on November 5, 2007, to address the motion.

On October 23, 2007, counsel for Sun-Trust entered an appearance by letter sent to the trial court clerk, a copy of which was sent to Patterson’s counsel. On November 5, 2007, SunTrust filed an answer to the complaint in which it essentially denied liability for the contested debit card transactions. Briefly stated, SunTrust claimed in its answer that it had complied with federal regulations governing the issuance of unsolicited “debit” or “check” cards and further that Patterson was liable for the disputed charges because he had failed to report the unauthorized activity on his account in a timely manner.

A hearing on Patterson’s motion was held on April 14, 2008. The court then ordered the parties to file briefs in support of their respective positions. In its brief, SunTrust noted that its late-filed answer was then pending. It summarized its opposition to a default judgment as follows:

[SunTrust] need not file a Motion or otherwise present proof showing excusable neglect or some other equitable reason for its failure to file a responsive pleading in a timely manner. Rather, it is within the sound discretion of the trial court as to whether Default Judgment should be entered, considering all of the circumstances, including the consideration that the law does not favor the entry of Default Judgments.

On July 29, 2008, the trial court entered a “judgment by default.” In part, the court observed as follows:

[SunTrust] gives no reason why it took so long ... to respond in this case, [SunTrust] arguing that the simple filing of an answer would rebut the provision of the Tennessee Rules of Civil Procedure relative to timely[-filed] answers.

As previously noted, the court’s order of July 29, 2008, did not address Patterson’s request for damages.

On August 28, 2008, SunTrust filed a pleading “pursuant to Rules 59.04 and 60.02” styled “Verified Motion for Relief from Order of Dismissal [sic]” in which it sought relief from the previously-entered order of July 29, 2008. In support of its position, SunTrust set forth the following facts by way of explanation as to why it failed to answer Patterson’s complaint in a timely manner:

At the time the complaint was received by [SunTrust’s] legal department, its in house counsel, Susan Craft, was preparing to leave her office for a vacation that had been planned over a year in advance. She directed her assistant to forward a copy of the summons and complaint to several individuals within [SunTrust], as required by internal procedures, and also to [SunTrust’s] present counsel, Michael L. Powell. However, although Ms. Craft’s assistant forwarded the copies to the [Sun-Trust] personnel as instructed, she failed to forward them to Mr. Powell because she failed to fully understand Ms. Craft’s instructions. Upon Ms. Craft’s return two weeks later, Ms. Craft saw the fax confirmation sheets for the [SunTrust] personnel stapled to the complaint and assumed the confirmation sheet for Mr. Powell was stapled underneath them. When she had not heard from Mr. Powell in the next weeks she assumed he had arranged with [Patterson’s] counsel for an informal extension of time for answering the complaint, which is a common professional courtesy. During this period Ms. Craft was not only dealing with the backlog of work from her vacation, but also with a recent move to a new residence, and the serious illness and ultimate death of her beloved dog. Although none of these reasons can excuse the failure to file the answer in a timely manner, they are offered as proof that the failure was not a willful one and that it was due to inadvertent mistake.
On or about October 15, 2007, [Patterson] filed his motion for default judgment.
The next day, Ms. Craft received a copy of [Patterson’s] motion and discovered that Mr. Powell had never received a copy of the complaint. She immediately faxed a copy of the summons, complaint and motion for default judgment to Mr. Powell. Mr. Powell was out of town, but left Ms. Craft a message that he would file a notice of appearance in the matter as soon as he returned. On October 18, 2007, Ms. Craft spoke to [Patterson’s] counsel by telephone, explained what had happened, apologized, and informed him that an answer would be forthcoming.

(Footnote added.)

At a November 17, 2008, hearing on SunTrust’s motion, counsel orally argued their respective positions regarding Sun-Trust’s motion for relief from the July 29, 2008, order. In a January 30, 2009, memorandum opinion, the court found that the motion was not well-taken and declined to vacate its order. An order to that effect followed on March 6, 2009. As previously noted, the case proceeded on the issue of damages and, following a further hearing on May 19, 2009, a judgment awarding damages to Patterson was entered on June 2, 2009. SunTrust timely filed a notice of appeal.

II.

SunTrust presents two issues for our consideration:

1. Did the trial 'court err in entering its order of July 29, 2008?
2. Did the trial court err in refusing to set aside its judgment by default?

III.

A trial court’s factual findings are presumed to be correct; they will not be overturned on appeal unless the evidence preponderates against them. Tenn. R.App. P. 13(d) (2008); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). A trial court’s conclusions of law are also reviewed under a de novo standard, but with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993).

A decision to enter a default judgment is reviewed under an abuse of discretion standard. State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.Ct.App.2000); Patterson v. Rockwell Int’l, 665 S.W.2d 96,100 (Tenn.1984). A decision as to whether to set aside a default judgment is reviewed under the same standard. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.2003); Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn.1993). This Court has explained the application of the abuse of discretion standard to decisions regarding default judgments as follows:

Under the abuse of discretion standard, a trial court’s ruling will be upheld so long as reasonable minds can disagree as to the propriety of the decision made. A trial court abuses its discretion only when it applies an incorrect legal standard, or reaches a decision which is against logic or reasoning or that causes an injustice to the party complaining. In the interests of justice, the courts have expressed a clear preference for a trial on the merits. Motions to set aside default judgments are not viewed with the same strictness that motions to set aside judgments after a hearing on the merits are viewed. Rather, such motions are construed liberally in favor of granting the relief requested. If there is reasonable doubt as to whether to set aside a default judgment upon proper application, a court should exercise its discretion in favor of granting relief from the judgment.

Decker v. Nance, No. E2005-2248-COA-R3-CV, 2006 WL 1132048 at *2 (Tenn.Ct. App. E.S., filed April 28, 2006)(internal citations in original omitted).

IV.

Although SunTrust contends that the trial court erred in entering its order of July 29, 2008, it presents no argument or citation to relevant authority to support its position. On our review, we conclude that this “issue,” such as it is, has no merit.

Tenn. R. Civ. P. 55.01 addresses the entry of a judgment by default:

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, judgment by default may be entered as follows:
The party entitled to a judgment by default shall apply to the court. Except for cases where service was properly made by publication, all parties against whom a default judgment is sought shall be served with a written notice of the application at least five days before the hearing on the application, regardless of whether the party has made an appearance in the action.

In the present case, it is undisputed that SunTrust failed to timely respond to Patterson’s complaint. See Tenn. R. Civ. P. 12.01 (providing that a “defendant shall serve an answer within thirty (30) days after the service of the summons and complaint upon him.”). Prompted by Patterson’s motion for a default judgment, Sun-Trust eventually filed its answer some five weeks beyond the permitted 30-day filing period. At the hearing on the motion for default, SunTrust apparently relied on its argument that the filing of an answer, in and of itself, is enough to avoid the entry of a default judgment. The trial court, however, rejected SunTrust’s position upon noting that SunTrust had given “no reason” for the delayed filing of its answer. This Court has observed that “[t]he belated filing of an answer is not an adequate response to a motion for default. There must be some application to the court for relief from the failure to timely file an answer.” State of Tennessee ex rel. Jones v. Looper, 86 S.W.3d at 196. Moreover, we have noted that “neither the Rules of Civil Procedure nor case law provide[s] that a default judgment must be denied if an answer is filed prior to the court’s hearing on the motion.” Id. The trial court in the present case granted a default judgment in response to an untimely answer filed without explanation or “application to the court for relief.”. The decision of whether to enter a default judgment required the trial court to consider the facts presented and to apply the relevant law. In our view, the trial court did so and acted within its discretion in entering a default judgment. Because reasonable minds could certainly differ concerning the soundness of the trial court’s decision, we find no error in the trial court’s decision to enter its order of default on July 29, 2008. See Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn.Ct.App.1999).

V.

Next, SunTrust asserts that the trial court erred in denying its motion to set aside the previously-entered order of July 29, 2008. SunTrust essentially argues that its delay in answering the complaint was not willful, but rather inadvertent, and should be excused consistent with the general preference for having cases heard on their merits.

In this regard, Tenn. R. Civ. P. 55 further provides that “[f]or good cause shown the court may set aside a judgment by default in accordance with Rule 60.02.” Tenn. R. Civ. P. 55.02. As we have previously noted in this opinion, the trial court, in its order of July 29, 2008, only addressed SunTrust’s failure to file a timely response to the complaint. It later én-tered its final judgment — which, of course, was a judgment following a default — on June 2, 2009. In practice, lawyers frequently refer to an order such as the one entered in this case on July 29, 2008, as a “judgment by default” or a “default judgment.” However, it is clear to us — in reading Tenn. R. Civ. P. 55.01 — that the “judgment by default” referred to in Tenn. R. Civ. P. 55.02 is a judgment such as the one entered in this case on June 2, 2009, ie., a final judgment. While the motion filed by SunTrust on August 28, 2008, was directed at the order of the trial court entered July 29, 2008, it is further clear to us that this appeal is taken from, and directed at, the trial court’s final judgment of June 2, 2009. This being the case, we will address the ultimate question in this appeal, ie., whether the June 2, 2009, “judgment by default” should be vacated under the Tenn. R. Civ. P. 55.02 rubric.

Rule 60.02(1) provides: “On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; .... ” The burden is on the moving party to set forth facts explaining why the movant was justified in failing to avoid the mistake, inadvertence, surprise or neglect. Henry v. Goins, 104 S.W.3d at 482; Hopkins v. Hopkins, 572 S.W.2d 639 (Tenn.1978).

Again, while the consideration of a motion to set aside a judgment by default requires the exercise of the trial court’s sound discretion, the law favors the granting of the motion. In Keck v. Nationwide Systems, Inc., 499 S.W.2d 266, 267 (Tenn.Ct.App.1973), we noted the following:

The setting aside of a judgment addresses itself and lies within the sound discretion of the court. One can find numerous decisions where the courts make it clear they are anxious to see cases determined on the merits whenever such is possible. It seems to be a universal rule that when there is a reasonable doubt as to whether a default judgment should be set aside upon proper application, the court should exercise its discretion in favor of granting the application so as to permit a determination of the cause upon the merits. See 46 Am.Jur.2d, Judgments, Sec. 687.

In the present case, the trial court made no findings in support of its refusal to set aside the default judgment except to state that SunTrust’s motion for relief was not well-taken. On our de novo review of the record, we cannot agree.

The Supreme Court has adopted a three-part test for evaluating a motion to set aside a default judgment based upon the grounds set forth in Rule 60.02(1). The applicable test requires a consideration of the following factors: “(1) whether the default was willful; (2) whether the defendant has a meritorious defense; and (3) whether the non-defaulting party would be prejudiced if relief were granted.” Henry v. Goins, 104 S.W.3d at 481 (citing Tenn. Dept. of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn.1985)). “Courts construe requests for relief pursuant to Rule 60.02 much more liberally in cases involving default judgment than in cases following a trial on the merits.” Henry, 104 S.W.3d at 481.

With respect to these factors, SunTrust first contends that the action of its in-house counsel, Ms. Craft, and her legal assistant, that led to SunTrust’s late-filed answer, were by no means intentional. On the contrary, in her sworn motion, Ms. Craft states that she believed she had attended to the complaint by directing her assistant, in counsel’s absence, to forward the complaint and summons to SunTrust’s assigned counsel, Mr. Powell, for response. When Ms. Craft returned from her scheduled trip, she saw fax transmission papers that left her with the mistaken impression that her instructions had been followed and that Mr. Powell was by then handling the case. Mr. Powell did not file a timely answer on SunTrust’s behalf because he was unaware of the litigation. At the same time, SunTrust’s in-house counsel, Ms. Craft, only realized this fact when confronted with Patterson’s motion for default judgment based solely on SunTrust’s failure to defend. Immediately after discovering the erroneous handling of the complaint in her office, Ms. Craft contacted Mr. Powell as well as opposing counsel, explained the matter, and assured adversary counsel that SunTrust’s answer would be “forthcoming.” It was thereafter filed on November 5, 2007.

Patterson suggests that Ms. Craft’s actions, whether they be characterized as careless, neglectful, or inattentive, are not excusable and do not merit relief under Rule 60.02(1). Tennessee “no longer categorically excludes ‘mere negligence’ or ‘carelessness’ of an attorney from the scope of excusable neglect, under Tenn. R. Civ. P. 60.02(1) with regard to setting aside default judgments.” Skipper v. State, M2009-00022-COA-R3-CV, 2009 WL 2365580, at *5-7 (Tenn.Ct.App. M.S., filed July 31, 2009)(quoting World Relief Corp. of Nat’l Ass’n of Evangelicals v. Messay, M2005-01533-COA-R3-CV, 2007 WL 2198199 at *5 (Tenn.Ct.App. M.S., filed July 26, 2007)). Patterson does not contend that counsel’s actions show a willful failure by SunTrust to defend itself. Based on the facts presented, we conclude that the default was not willful, but negligent. “Negligence on the part of the moving party ... appears to be precisely the type of error a Rule 60 motion is designed to relieve.” Tate v. County of Monroe, 578 S.W.2d 642, 644 (Tenn.App.1978); see Skipper, 2009 WL 2365580, at *7 (excusable neglect can include negligent conduct of attorney).

As to the remaining two factors, we conclude that they also militate in Sun-Trust’s favor. In its answer and its motion to set aside, SunTrust presents a meritorious defense to the complaint based on applicable federal banking law. Lastly, Patterson does not argue, and no showing has been made, that he will suffer any specific prejudice if the judgment is set aside and the case proceeds to a trial on the merits. “Simply having to proceed to trial does not constitute prejudice, nor does the mere passage of time.” Henry, 104 S.W.3d at 482 (citing Barbee, 689 S.W.2d at 867; Nelson, 826 S.W.2d at 486). In our consideration of the relevant factors set out in Henry, we conclude that Sun-Trust has demonstrated excusable neglect by its counsel and is entitled to relief from the trial court’s judgment based upon an appropriate analysis of the Tenn. R. Civ. P. 60.02(1) grounds. We therefore conclude that the trial court erred in failing to set aside the final judgment rendered against SunTrust.

VT.

The judgment of the trial court is hereby vacated. This case is remanded to the court below for further proceedings. Costs on appeal are taxed to the appellee, Stephen S. Patterson, II.

      . The motion recites that SunTrust "moves this court to set aside its order of dismissal previously entered herein.” (Emphasis added.) Of course, there was no "order of dismissal.” Obviously, the motion was directed at the court’s order of July 29, 2008, finding SunTrust in default.

      . Apparently, the matter was assigned to Mr. Powell as outside counsel for SunTrust.

      . We say ''apparently” because there is no transcript of the hearing that led to the trial court's order of July 29, 2008; however, we note that this is the argument made in the plaintiff's trial brief.


author: JERRY L. SMITH, J.,

text:
    STATE of Tennessee v. Kyra ROBINSON.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Nov. 18, 2009 Session.
    March 30, 2010.
    No Application for Permission to Appeal Filed.

      John G. Mitchell and Elizabeth C. Fikes, Murfreesboro, Tennessee, for the appellant, Kyra Robinson.
    Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and Bill Whitesell, District Attorney General, for the appellee, State of Tennessee.
   OPINION

JERRY L. SMITH, J.,

delivered the opinion of the court,

in which THOMAS T. WOODALL and CAMILLE R. McMULLEN, JJ, joined.

Appellant, Kyra Robinson, was indicted by the Cannon County Grand Jury for one count of theft of property over $10,000, one count of conspiracy to commit theft, and 268 counts of fraudulently obtaining a controlled substance. Appellant filed an application for pretrial diversion. The Assistant Attorney General denied the application. Appellant sought review by petition for writ of certiorari with the trial court. After a hearing, the trial court denied the petition, finding that the Assistant Attorney General did not act arbitrarily or capriciously in denying the request for pretrial diversion. Subsequently, Appellant pled guilty to one count of theft and thirty-five counts of fraud in exchange for a total effective sentence of eight years. The State dismissed the remaining counts of the indictment. The trial court determined, after a sentencing hearing, that Appellant should serve the entire sentence on probation. Appellant appeals, challenging the denial of pretrial diversion as well as the trial court’s denial of the writ of certiorari and judicial diversion. After a review of the record, we determine that Appellant waived the issue regarding pretrial diversion for failure to seek review via Tennessee Rule of Appellate Procedure 9 or 10 and by entering a guilty plea. Further, we determine that the trial court properly denied the writ of certiorari and judicial diversion. Accordingly, the judgments of the trial court are affirmed.

Factual Background

Appellant was indicted by the Cannon County Grand Jury in January of 2008 for one count of theft of property over $10,000, one count of conspiracy to commit theft, and 268 counts of obtaining a controlled substance by fraud. Appellant worked as the jail nurse for the Cannon County Jail and was alleged to have falsified prescriptions for medication for inmates. Appellant would call in the prescriptions, bill them to Cannon County, and take the medication herself or give it to her husband to sell in the surrounding areas. Appellant performed these activities over an eighteen-month period of time, amassing over 30,000 pills and charging approximately $10,500 to the Cannon County Jail.

Appellant applied for pretrial diversion. The Assistant District Attorney issued a letter in which pretrial diversion was denied. Specifically, in making the decision to deny diversion, the Assistant District Attorney spoke with Appellant’s current and former supervisors and several references provided by Appellant; reviewed drug screens taken by Appellant; reviewed Appellant’s statement to the Tennessee Bureau of Investigation (“TBI”); and interviewed several members of the staff of the Cannon County Sheriffs Department and the Cannon County mayor.

In the written order denying diversion, the State noted that Appellant was in good mental and physical health and had held a job continuously from 1993 to 2008. Interviews with Appellant’s current supervisor at CareAll Private Duty and references from a former employer at Home Health Concepts, Inc. as well as personal references weighed in Appellant’s favor. However, the State determined “in evaluating the likelihood that pretrial diversion will serve the ends of justice and the best interests of both the public and defendant, I am of the opinion at this time that they will not.” The State noted that Appellant, in her position as jail nurse, abused a position of private trust by using her knowledge of the health care industry to commit the offenses. Further, the State concluded that Appellant’s statement to the TBI and her statements in the application for diversion were “not completely consistent with each other.” Specifically, in her application for diversion, Appellant claimed that the crimes were committed to support her drug addiction. In her statement to the TBI, Appellant blamed her criminal behavior on the fact that she was “pretty sure” that she would get the house in the pending divorce proceedings and that she wanted to make sure her husband was still able to make the house payment.

The State noted that the TBI opposed diversion. The TBI felt that Appellant’s actions evinced an “organized criminal effort” to use her position of trust to fraudulently obtain the prescriptions in order to sell them for profit. Moreover, Appellant’s activity was not isolated to Cannon County. Appellant was indicted by the Dekalb County Grand Jury with conspiracy to sell Schedule IV controlled substances.

The State also determined that Appellant failed to show any effort to receive rehabilitation. Further, the State knew that there was a “problem across the State of Tennessee” with nurses who use and obtain narcotics illegally. The Sheriff of Cannon County noted that there was a drug problem in the county that required deterrence. The County Mayor, Mike Gannon, was opposed to diversion, stating that Appellant should be held to a higher standard than an ordinary citizen because of her job.

Appellant was found to have a history of criminal conduct in part because she had used narcotics over a long period of time, eighteen months. Appellant’s prior employers documented her attendance problems at work. Several expressed their concern for patients being treated by a nurse with a substance abuse problem. Appellant also used approximately $10,500 of county money to facilitate her criminal activity.

After the initial denial of diversion, Appellant filed an application for common law writ of certiorari with the trial court. Appellant argued that the State acted arbitrarily and capriciously by denying diversion and sought a review of that decision by the trial court.

The trial court held a hearing on the matter. At the hearing, both parties agreed to enter stipulated statements by various witnesses, including all of the people the State interviewed while gathering information to make a determination regarding diversion.

Additionally, Appellant’s mother, Renee Ferguson, testified at the hearing. She informed the trial court that, at the time of the hearing, Appellant was sober, pregnant, and engaged to be married. She described Appellant as a changed person.

Appellant testified in her own behalf. She described her addiction to pain killers and admitted that her addiction led her to commit the crimes. Appellant testified that she quit taking the drugs “cold turkey” on December 14, 2007. She described the detox process as painful and miserable. Appellant informed the court that she had $5,000 to apply to restitution to the county. Appellant’s husband had already paid $5,000 to the county. Appellant stated that she had learned a “very valuable lesson” and acknowledged that she had disappointed a lot of people and was sorry for what she had done. Appellant described the effect that her actions had on her own career. Appellant is no longer able to practice as a nurse and was unable to find work for a period of about five months. Appellant expressed deep remorse and insisted that she would do whatever the court asked her to do in the future.

At the conclusion of the hearing, the trial court noted its role was to determine if the State had acted arbitrarily or capriciously in denying diversion. The trial court noted that Appellant’s “amenability to correction is off the scale on the positive side” and that “not many people would take the initiative to do what she has done.” The trial court concluded that Appellant’s social history and prior record were positive, weighing in Appellant’s favor. However, the trial court felt that the offenses were “at the extreme on the other end.” Appellant used a position of trust to facilitate the commission of crimes over a lengthy period of time. Further, the “deterrence value” was determined to be “off the scale again on the negative side” and diversion would “dampen or would certainly damage ... the public’s interest and the ends of justice.” The trial court concluded by commenting that the whole situation was a “tragedy” not only for Appellant, but for her daughter, her family, and all of Cannon County. Despite the many factors that weighed in favor of diversion, the trial court found that the State had not abused its discretion. Consequently, the trial court denied the writ of certiorari.

Appellant subsequently pled guilty to one count of theft and thirty-five counts of fraud, in exchange for an effective sentence of eight years. The trial court was to determine the manner of service of the sentence and whether Appellant was a suitable candidate for judicial diversion at a later sentencing hearing.

At the conclusion of the sentencing hearing, the trial court denied judicial diversion. The trial court again described the offense as “horrible” because of the “number of thousand of pills that were stolen,” the “position of trust” in which Appellant was placed at the jail, the “abuse” of that trust, the length of time that the crimes were committed, and the level of betrayal perpetuated by Appellant in her actions. The trial court also noted that the deterrence value of Appellant’s punishment was a “very public issue” weighing against the grant of diversion. On the other hand, the trial court again favorably noted Appellant’s demonstration of her own amenability to correction. The trial court stated Appellant had “taken the burden upon herself since her apprehension.” The Appellant’s lack of prior criminal history and positive social history also weighed in favor of judicial diversion.

In conclusion, the trial court denied diversion and determined:

[T]his is not a case where we should exercise our discretion to grant judicial diversion. Respectfully that’s just not appropriate in this case given the number of convictions, given the period of time and the culpability involved in this case and the number of people that were affected and those other factors

The trial court ordered Appellant to serve her sentence on probation. In so doing, the trial court noted that it felt “compelled” but “really, really, really” unhappy about granting a suspended sentence in Appellant’s case.

Appellant filed a timely notice of appeal under Rule 3 of the Tennessee Rules of Appellate Procedure. On appeal, Appellant challenges the State’s denial of pretrial diversion, the trial court’s denial of the writ of certiorari, and the trial court’s denial of judicial diversion.

Analysis

The State maintains that Appellant has waived her right to appeal the State’s denial of pretrial diversion by the act of pleading guilty and failing to reserve a certified question of law. According to the State, the Tennessee Supreme Court’s opinion in State v. McKim, 215 S.W.3d 781 (Tenn.2007), makes clear that Appellant has waived the issue of pretrial diversion because she did not comply with Rule 3 of the Tennessee Rules of Appellate Procedure. Specifically, the State cites to the following language from McKim to support their assertion:

Prior to July 1, 1997, interlocutory appeal under Tennessee Rules of Appellate Procedure 9 or 10 was the only means of attempting to overturn a trial court’s decision to affirm a district attorney general’s denial of pretrial diversion. A defendant who disagreed with the decision of the prosecutor or the trial court was required to pursue an interlocutory appeal in order to challenge that decision. If the defendant failed to seek interlocutory relief and was thereafter convicted, he or she was deemed to have waived the right to challenge the denial of pretrial diversion on direct appeal. See State v. Mecord, 815 S.W.2d 218, 219 (Tenn.Ciim.App.1991). Effective July 1, 1997, however, Tennessee Rule of Criminal Procedure 38 was amended to permit a defendant to appeal his or her denial of pretrial diversion after conviction as well as before. Specifically, Rule 38 now provides that, where a defendant is unsuccessful in having the trial court reverse the prosecutor’s denial of pretrial diversion,
the defendant may pursue an interlocutory appeal ... pursuant to either Rule 9 or Rule 10 of the Tennessee Rules of Appellate Procedure.... If the defendant does not pursue an interlocutory appeal of the denial of a writ of certiorari, the defendant may appeal the denial pursuant to Rule 3(b), Tennessee Rules of Appellate Procedure, following the entry of the final judgment in the trial court.
Tenn. R.Crim. P. 38(b). Thus, a defendant denied pretrial diversion may still seek an interlocutory appeal but will not be deemed to have waived the issue if he or she waits until after conviction to appeal.

McKim, 215 S.W.3d at 791 (quoting Tenn. R.Crim. P. 38(b)). Rule 3(b) of the Tennessee Rules of Appellate Procedure provides that:

(b) Availability of Appeal as of Right by Defendant in Criminal Actions. In criminal actions an appeal as of right by a defendant lies from any judgment of conviction entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty or nolo contendere, if the defendant entered into a plea agreement but explicitly reserved the right to appeal a certified question of law disposi-tive of the case pursuant to and in compliance with the requirements of Rule 37(b)(2)(i) or (iv) of the Tennessee Rules of Criminal Procedure, or if the defendant seeks review of the sentence and there was no ¡olea agreement concerning the sentence, or if the issues presented for review were not waived as a matter of law by the plea of guilty or nolo contendere and if such issues are apparent from the record of the proceedings already had. The defendant may also appeal as of right from an order denying or revoking probation, and from a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding.

In the case herein, the State denied pretrial diversion. Appellant proceeded by filing a writ of certiorari with the trial court. Upon denial of the writ, Appellant chose not to seek review of the trial court’s decision pursuant to Rule 9 or 10 of the Tennessee Rules of Appellate Procedure, the traditional procedure for appeal in pretrial diversion cases. Instead, Appellant pled guilty to some of the charges. As can readily be seen any appeal of the denial of pretrial diversion pursuant to Tennessee Rule of Criminal Procedure 38(b) must be “pursuant to Rule 3(b) Tennessee Rules of Appellate Procedure.” It can also readily be seen that Tennessee Rule of Appellate Procedure 3(b) has no provision for an appeal of the denial of pretrial diversion upon the defendant’s plea of guilty. Thus, a criminal defendant who is convicted following a trial is permitted to appeal the denial of pretrial diversion pursuant Tennessee Rule of Appellant Procedure 3(b), however a defendant who pleads guilty has no appeal of a pretrial diversion denial under Rule 3(b). Therefore, this court lacks jurisdiction to entertain this issue on the merits.

Denial of Judicial Diversion

Next, Appellant complains that the trial court improperly denied judicial diversion after the sentencing hearing. Specifically, Appellant complains that the trial court abused its discretion by failing to consider all the relevant factors and failing to “clearly articulate ... the specific reasons supporting its decision that the nature of the offense and the abuse by [Appellant] of a position of public trust outweigh all other relevant factors.” The State contends that the trial court properly determined that the circumstances of the offense justified a denial of diversion.

According to Tennessee Code Annotated section 40-35-313, commonly referred to as “judicial diversion,” the trial court may, at its discretion, following a determination of guilt, defer further proceedings and place a qualified defendant on probation without entering a judgment of guilt. T.C.A. § 40-35-313(a)(l)(A). A qualified defendant is one who:

(a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;
(b) Is not seeking deferral of further proceedings for a sexual offense or a Class A or Class B felony; and
(c) Has not previously been convicted of a felony or a Class A misdemeanor.

T.C.A. § 40 — 35—313(a)(1)(B)(i)(a), (b), & (c). When a defendant contends that the trial court committed error in refusing to grant judicial diversion, we must determine whether the trial court abused its discretion by denying the defendant’s request for judicial diversion. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn.Crim.App.1997). Judicial diversion is similar to pretrial diversion. However, judicial diversion follows a determination of guilt, and the decision to grant judicial diversion is initiated by the trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572 (Tenn.Crim.App.1992). When a defendant challenges the trial court’s denial of judicial diversion, we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw, 967 S.W.2d at 344; State v. Parker, 932 S.W.2d 945, 958 (Tenn.Crim.App.1996).

The criteria that the trial court must consider in determining whether a qualified defendant should be granted judicial diversion are similar to those considered by the prosecutor in determining suitability for pretrial diversion and includes the following: (1) the defendant’s amenability to correction; (2) the circumstances of the offense; (3) the defendant’s criminal record; (4) the defendant’s social history; (5) the defendant’s physical and mental health; and (6) the deterrence value to the defendant and others. Parker, 932 S.W.2d at 958; Cutshaw, 967 S.W.2d at 343-44. An additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests of the public as well as of the defendant. See Parker, 932 S.W.2d at 958; Cutshaw, 967 S.W.2d at 344; State v. Bonestel, 871 S.W.2d 163,168 (Tenn.Crim.App.1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn.2000).

After hearing the evidence, the trial court concluded that the circumstances of the offense weighed heavily against the grant of diversion but noted that Appellant’s clean criminal history weighed in favor of the grant of diversion. The trial court noted that Appellant’s amenability to correction was shown by Appellant’s actions, namely the fact that Appellant sought treatment for her drug addiction by herself on her own initiative prior to the hearing. Specifically, the trial court acknowledged the “merits of the progress” Appellant had made since her arrest. However, the trial court concluded that the need for deterrence was high because it was a “horrible offense” and that Appellant had abused a position of trust as an employee of the county. The trial court found that deterrence was a “very public issue” and that the grant of judicial diversion would not serve the public interests or the ends of justice. In the end, despite the factors weighing in favor of diversion, the trial court concluded that Appellant had not shown her suitability for judicial diversion. The trial court felt it “clear” that Appellant’s case was “not a case where we should exercise our discretion to grant judicial diversion.” After reviewing the evidence presented to the trial court at the sentencing hearing, we determine that the trial court considered the necessary factors and that there was “substantial evidence” to support the trial court’s denial of judicial diversion. See Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958. This issue is without merit.

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

      . Tennessee Code Annotated section 40-15-105 provides a procedure by which a criminal prosecution is held in abeyance during which time a defendant who maintains a good record of compliance with the conditions of diversion may avoid the stigma of a criminal conviction. It is reserved for individuals with the potential for rehabilitation and the avoidance of further criminal prosecutions.

      . We cannot see how the propriety of the denial of pretrial diversion can ever be the subject of a reserved dispositive certified question. In order to be dispositive resolution of the certified question presented must leave the appellate court with the sole choice of either affirming the trial court or reversing and dismissing the case. State v. Dailey, 235 S.W.3d 131, 134 (Tenn.2007). In the case of the denial of pretrial diversion, resolution of the appeal in favor of the defendant would not result in dismissal of the case, but rather with the defendant’s being placed on diversion. Pretrial diversion simply holds the prosecution in abeyance until the defendant successfully completes the diversionary period or the diversion is revoked. T.C.A. § 40-15-105(a)(1)(A).


author: JOHN EVERETT WILLIAMS, J.,

text:
    STATE of Tennessee v. Maurice JONES.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Assigned on Briefs March 3, 2009.
    Feb. 8, 2010.

      Robert Wilson Jones, District Public Defender, and Harry E. Sayle, III, Assistant Public Defender (on appeal); and Andrew Bernstein, Memphis, Tennessee (at trial), for the appellant, Maurice Jones.
    Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Scot A. Bearup, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JOHN EVERETT WILLIAMS, J.,

delivered the opinion of the Court,

in which ALAN E. GLENN and CAMILLE R. McMULLEN, JJ., joined.

The defendant, Maurice Jones, entered an open plea agreement to one count of Class E felony sexual battery in the Shelby County Criminal Court. Following a sentencing hearing, the trial court imposed a sentence of two years, all suspended to probation but sixty days to be served in the county woi'khouse. As a special condition of his probationary sentence, the trial court ordered that the defendant is not allowed unsupervised contact with any minor child under eighteen years of age, including his own children. On appeal, the defendant asserts that the trial court exceeded its authority in denying him unsupervised contact with his minor children. Following review of the record, we conclude that the special condition is over-broad as written. Accordingly, the case the remanded to the trial court for imposition of a more defined and less limiting condition.

Factual Background

The basic underlying facts supporting the conviction, as recited by the State at the guilty plea hearing, are “that on the period of time set out in the indictment[, October 17, 2006, to October 17, 2007,] the defendant ... was residing in the residence with the minor victim as a stepfather, and that during that period of time [the defendant] did have sexual contact with the victim.” Based upon these actions, the defendant was indicted by a Shelby County grand jury for one count of sexual battery.

Subsequently, the defendant pled guilty as charged, with the agreement specifying that the sentence, including the appropriateness of judicial diversion, was to be determined by the trial court.

At the sentencing hearing, the State introduced victim impact statements from the victim and her mother, as well as a letter from the victim’s treating psychologist. Also introduced were the presen-tence report, the defendant’s psychosexual evaluation, and his honorable discharge from the army. Additionally, the defendant testified. He acknowledged that he had committed sexual battery against the victim, the daughter of his live-in girlfriend, who had lived with him for six years and who viewed him as a father figure. He testified that, following the abuse, the victim and her mother moved to Minnesota. In contradiction to statements contained in the victim impact statement, the defendant denied that he had penetrated the victim, that he had ejaculated in the victim’s presence, or that he had been naked in the victim’s bed. The defendant insisted that he had only fondled the victim’s breasts and buttocks. Moreover, the defendant disputed the victim’s statement that the acts continued for more than two years and stated that he had fondled her no more than ten times over less than a one-year period. He also testified that he had stopped the abuse approximately a month and a half prior to the victim reporting it. Moreover, he related that, following his arrest, he had sought counseling. Finally, he testified that, after he was charged, the Department of Human Services conducted an investigation but did not remove his children from his care.

The defendant testified that he received an honorable discharge from the army after four years of service when his wife died of cancer in order to assume care of his four minor children, who were ages seven, five, three, and one. According to the defendant, he retains custody of these children, now fourteen, twelve, ten, and eight years old and is the sole provider of support and care to them. He acknowledged that he has been gainfully employed less than two weeks in the prior seven years and that his main source of income is survivorship benefits. He testified that he has no prior criminal record but acknowledged that, after the instant charge, he had been arrested for DUI, violation of the implied consent law, and simple possession of marijuana. The presentence report admitted into evidence supported this testimony.

The trial court also reviewed the psycho-sexual evaluation which was submitted. The report indicated that the defendant was at an extremely low risk to reoffend. However, the examining doctor did indicate that being the sole caretaker to his children might elevate the risk. The doctor further noted that procedures needed to be taken to ensure that the defendant is not alone with his children.

After hearing the evidence presented, the trial court denied the defendant’s request for diversion and imposed a sentence of two years, suspended to probation following service of sixty days. As a special condition of that probation, the trial court ordered that the defendant was to have “no unsupervised contact with the defendant’s minor children or any child under eighteen years of age.” The defendant has timely appealed.

Analysis

On appeal, the defendant raises the single issue of whether the trial court exceeded its authority in denying the defendant unsupervised contact with his minor children, which he describes as an unauthorized condition of probation. He contends that the condition is not reasonably related to the rehabilitation of the defendant and “is destructive of the natural family, and unreasonably restricts [the defendant’s] freedom to exercise his responsibilities as a parent.”

When a criminal defendant challenges the length, range, or manner of service of a sentence, the reviewing court must conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991). In the event the record fails to show such consideration, the review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn.Crim.App.1992).

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence “even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim.App.1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d at 169.

The Sentencing Act provides that “the trial court has great latitude in formulating punishment, including the imposition of conditions of probation.” State v. Burdin, 924 S.W.2d 82, 85 (Tenn.1996). However, the primary purpose of a sentence of probation “is rehabilitation of the defendant,” id. at 86, and the conditions or probation must be suited to this purpose. “Once the trial judge determines that probation is justified under the circumstances, the conditions imposed must be reasonable and realistic and must not be so stringent as to be hard, oppressive or palpably unjust.” Stiller v. State, 516 S.W.2d 617, 620 (Tenn.1974). The Act does not grant to the trial court “unfettered authority” to impose any condition on the defendant’s probation but limits the court’s discretion to “the bounds of traditional notions of rehabilitation.” Burdin, 924 S.W.2d at 87; see also State v. Mathes, 114 S.W.3d 915, 918 (Tenn.2003) (disapproving probation condition that did “not serve either the goal of rehabilitation or the goal of deterrence”); State v. Robinson, 139 S.W.3d 661, 666 (Tenn.Crim.App.2004). That being said, however, the burden of demonstrating the impropriety of a probation condition rests with the defendant. Burdin, 924 S.W.2d at 84.

In support of his argument, the defendant relies upon State v. Robinson, a case in which a licensed pharmacist with no prior criminal record received probation after illegally disbursing controlled substances to a romantic interest over a period of time. Robinson, 139 S.W.3d at 663. The trial court imposed a condition which precluded his practicing pharmacy. Id. at 666. A panel of this court found that the condition was: (1) punitive and not rehabilitative; (2) was not based upon concerns of future criminality; (3) was unnecessary and overbroad in light of the regulatory authority of the Tennessee Board of Pharmacy; and (4) was unduly restrictive in preventing lawful employment. Id. at 667. The defendant likens the instant condition to the one in Robinson, asserting: he also has no prior criminal record; the crime was against only one person; he will be regulated by the Board of Probation and Parole; the Department of Human Services found no reason to remove his children; and the condition deprives him of a basic right, that being the right to exercise parental privileges and responsibilities.

The State disagrees and asserts that the defendant’s case is more akin to the facts of State v. James Robert Lawson, No. E2001-01415-CCA-R3-CD, 2002 WL 1446656 (Tenn.Crim.App. at Knoxville, Jul. 5, 2002). In Lawson, the defendant was a father convicted of child abuse for slapping his daughter in the face, knocking her to the ground, and hitting her with a belt. James Robert Lawson, No. E2001-01415-CCA-R3-CD. The trial court, as a condition of probation, ordered that the defendant could not live in the same household with a small child. Id. The State contends that, like in Lawson, the defendant was convicted “of a heinous crime against a minor child who viewed the defendant as a ‘father figure.’ ” The State further likens the two cases based upon the statement by the doctor in the defendant’s psy-chosexual evaluation that procedures need to be implemented to ensure adequate supervision for the defendant’s minor children. The State contends that the instant condition: (1) reasonably relates to the defendant’s crime; (2) is rehabilitative in purpose; (3) is based upon concerns of future criminality; and (4) is not unduly restrictive.

After review of the record and relevant case law, we are unable to adopt either the State’s or the defendant’s argument. The defendant’s argument and reliance upon Robinson is misplaced, as we fail to see a comparison between an employment condition versus one utilized to protect children from abuse, as well as regulation by the Board of Pharmacy versus the Board of Probation and Parole. Nonetheless, while we do agree with the State that the instant case is more akin to the facts in Lawson, we are also precluded from concluding that the condition in this case is proper. Basically, we conclude that the condition of probation at issue, that the defendant have no unsupervised contact with his own minor children or any child under the age of eighteen, is overbroad, is not properly defined, and is unduly restrictive.

The problem arises with the term “unsupervised contact.” The failure to define the term “unsupervised contact” creates problems with clarity for the defendant to know his restrictions and with enforceability, leading to an unjust result. As written, the condition would preclude any sort of unsupervised communication between the defendant and any person under the age of eighteen, including but not limited to telephone conversations, emails, and letters. Taken to the extreme, it would also preclude the defendant from entering a retail establishment if the clerk was alone and happened to be under eighteen. While we would agree that the condition of probation is related to the offense, we must conclude that the condition, as written, is aimed more at protecting possible victims than at the defendant’s rehabilitation. See State v. Glenn E. Pressinell, Nos. E2008-01290-CCA-R3-CD, E2008-01735-CCA-R3-CD, 2009 WL 321215 (Tenn.Crim.App. at Knoxville, Feb. 10, 2009). As written, the condition is too indefinite to be reasonable or realistic.

The confusion is evidenced from the record itself, as defense counsel was forced to ask for a clarification as to whether the defendant could speak with his child by phone. We realize that this is not the effect intended by the trial court, who expressed great and justifiable concerns for the safety of the defendant’s minor children, and we recognize and applaud the effort taken to protect those children. However, we are confident that the trial court can fashion a condition which is both more defined and less limiting than the one imposed in order to accomplish that goal.

CONCLUSION

Because the trial court’s imposition of the challenged condition of probation is overbroad, we remand to the trial court with instruction to fashion a more defined and less limiting condition.