                                                                                       10/15/2018

               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              September 5, 2018 Session

    JOHN R. DEBERRY v. CUMBERLAND ELECTRIC MEMBERSHIP
                        CORPORATION

               Appeal from the Circuit Court for Montgomery County
                No. MCCCCVOD-13-3028           Ross H. Hicks, Judge
                     ___________________________________

                          No. M2017-02399-COA-R3-CV
                      ___________________________________


This is a retaliatory discharge claim brought by an employee against his employer,
alleging he was fired in retaliation for claiming workers’ compensation benefits. The
trial court ruled in favor of the employee, finding that the employee had made a prima
facie showing that his termination was in retaliation for his claim for workers’
compensation benefits. The trial court also found that the employee established the
employer’s stated non-discriminatory reason was pretext. Because the record does not
reflect that the trial court exercised its own independent judgment, we vacate and remand
for proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
                                   Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which ANDY D. BENNETT
and RICHARD H. DINKINS, JJ., joined.

Roger A. Maness, Clarksville, Tennessee, for the appellant, Cumberland Electric
Membership Corporation.

Matthew A. Moushon and Gabrielle C. Mees, Nashville, Tennessee, for the appellee,
John R. DeBerry.


                                       OPINION

                          I. FACTS & PROCEDURAL HISTORY
        John R. Deberry, appellee, filed this retaliatory discharge case, claiming he was
fired in retaliation for receiving workers’ compensation benefits. Mr. Deberry worked as
a groundman for appellant, Cumberland Electric Membership Corporation (“CEMC”).
During his time as a groundman for CEMC, Mr. DeBerry suffered three separate
injuries—for one of which he missed time from work and received workers’
compensation benefits.

        The first injury Mr. DeBerry sustained occurred in 2012 when he tore his rotator
cuff. As a result, he remained off work for six months and received workers’
compensation benefits during the entire time period. The two subsequent injuries
involved minor injuries to Mr. DeBerry’s lower back while moving an axle that is used to
hold a reel of wire. With respect to the last two injuries, he filled out incident reports but
did not miss any time from work nor did he receive workers’ compensation benefits for
either injury.

       Five days after the second injury to Mr. DeBerry’s lower back, on May 21, 2013,
Mr. DeBerry was terminated. Mr. DeBerry filed the present lawsuit on December 20,
2013, alleging he was fired in retaliation for his claim for workers’ compensation
benefits. CEMC filed an answer on September 18, 2014, asserting that Mr. DeBerry was
expressly told to lift the axle in a certain way and that he knowingly disregarded those
instructions, choosing instead to lift the axle in an unsafe manner. Mr. DeBerry’s failure
to heed the instructions was further alleged to be in violation of the CEMC safety manual.

       A bench trial was held on October 4, 2017. At the conclusion of the trial, the trial
judge stated, “I intend to take this matter under advisement,” and he did not give an oral
ruling. The trial court further instructed both parties to submit proposed findings of fact
and conclusions of law. After both parties submitted their respective findings and
conclusions, the trial court found in favor of Mr. DeBerry. The trial court found that Mr.
DeBerry had satisfied his burden of proof, proving that his termination was in retaliation
for his claim for workers’ compensation benefits. The court found that Mr. DeBerry
proved that CEMC’s proffered legitimate business reason of “willfully disregard[ing]”
the instructions given by the Safety Committee regarding lifting the axle was pretext.
CEMC filed a timely notice of appeal.

                                  II. ISSUES PRESENTED

       CEMC presents the following issues on appeal:

       1.    Whether the trial court erred in finding that Mr. DeBerry had carried his
       burden of proving by a preponderance of the evidence that his claim for workers'
       compensation benefits was a substantial motivating factor in the decision to
       terminate his employment?

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       2.    Whether the trial court erred as a matter of law in its analysis of whether
       CEMC's proffered legitimate business reasons for terminating Mr. DeBerry’s
       employment were pretextual?

                                 III. STANDARD OF REVIEW

      In cases tried without a jury, findings of fact will be reviewed “de novo upon the
record of the trial court” with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); SecurAmerica Bus. Credit v. Southland
Transp. Co., No. W2016–02505–COA–R3–CV, 2018 WL 1100958, at *5 (Tenn. Ct.
App. Feb. 27, 2018). We review the trial court’s conclusions of law de novo with no
presumption of correctness. Id.

                                       IV. DISCUSSION

        A trial court’s decisions “must be, and must appear to be, the result of the exercise
of the trial court’s own judgment.” Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 312
(Tenn. 2014).1 The requirement that a trial court exercise its independent judgment does
not mean that a trial court may not adopt party-prepared findings of fact and conclusions
of law. SecurAmerica Bus. Credit, 2018 WL 1100958, at *6. To the contrary, while
judge-prepared findings and conclusions are preferable,2 party-prepared factual findings
and legal conclusions may be adopted under two conditions: “(1) the findings and
conclusions must accurately reflect the decision of the trial court[;] and [(2)] the record
must not create doubt that the decision represents the trial court’s own deliberations and
decision.” Premier Imaging/ Med. Sys, Inc. v. Coffey Family Med. Clinic, P.C., No.
E2017-02186-COA-R3-CV, 2018 WL 3361067, at *6 (Tenn. Ct. App. July 10, 2018)
(quoting Smith, 439 S.W.3d at 316) (internal quotations omitted)). In order to determine
whether a trial court exercised its independent judgment in rendering a decision, “we
compare the trial court’s oral ruling with its written order.” SecurAmerica Bus. Credit,
2018 WL 1100958, at *6.


       1
          While the court in Smith examined independent judgment in the summary judgment
context, the holding in Smith is also applicable to other cases including bench trials, such as in
the present case. See In re Colton B., No. M2017–00997–COA–R3–PT, 2017 WL 6550620, at
*3 (Tenn. Ct. App. Dec. 22, 2017) (noting that the court in Smith examined cases outside the
purview of summary judgment in concluding whether the trial court exercised independent
judgment and determining that “the holding in Smith is equally applicable in other cases where
trial courts are required to make findings of fact and conclusions of law.”).
        2
          See Delevan-Delta Corp. v. Roberts, 611 S.W.2d 51, 53 (Tenn. 1981) (“Findings
prepared by the trial judge which represent his independent labor are preferable. . . .”).


                                                3
       Here, the trial court did not make an oral ruling; therefore we have nothing to
compare to the written order. Instead, the trial court decided to “take th[e] matter under
advisement.” The trial court also requested that both parties submit proposed findings of
fact and conclusions of law. After both parties had submitted their findings and
conclusions, the trial court adopted nearly all of plaintiff’s findings 3 and completely
adopted plaintiff’s conclusions of law. The only changes made to plaintiff’s proposed
conclusions of law by the court in its order were to fill in a blank left for the damages
award, fill in the date, and change the format of the signature line at the bottom of the
document. The findings and particularly the conclusions adopted by the trial court
implicate the concerns expressed by the Tennessee Supreme Court in Smith, where the
court stated:

       A trial court's verbatim adoption of verbiage submitted by the prevailing
       party . . . gives rise to the impression that the trial judge either has not
       considered the losing party's arguments, or has done little more than choose
       between two provided options rather than fashioning a considered,
       independent ruling based on the evidence, the filings, argument of counsel,
       and applicable legal principles. At worst, it risks creating an appearance of
       bias or the impression that the trial court ceded its decision-making
       responsibility to one of the parties.

Smith, 439 S.W.3d at 315.

       The absence of an oral ruling means we cannot determine whether “the findings
and conclusions [] accurately reflect the decision of the trial court,” nor whether the
“decision represents the trial court’s own deliberations and decision[,]”as the record is
devoid of any indication of the trial court’s decision outside of its adoption of party-
prepared findings and conclusions. Premier Imaging/ Med. Sys, Inc., 2018 WL 3361067,
at *6. Because of the non-existence of an oral ruling along with the near verbatim
adoption of plaintiff’s findings and conclusions, we cannot parse out whether the order
was the trial court’s own independent judgment.

       While we recognize the hardship to the parties created by delaying a decision on
the merits, “we cannot excuse the trial court from its obligation to render a decision that
is ‘the product of the trial court’s independent judgment.”’ In re Colton B., 2017 WL
6550620, at *5 (quoting Smith, 439 S.W.3d at 315). Therefore, we must vacate and

       3
          Specifically, the trial court adopted all but two of plaintiff’s forty-three proposed
findings of fact. Of the forty-one findings adopted from plaintiff’s proposed findings, the court
slightly reworded one finding, while adding a sentence to another from defendant’s proposed
findings. Further, the court incorporated only seven of defendant’s proposed findings of fact.


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remand this case for further proceedings consistent with this opinion.

                                    V. CONCLUSION

      The judgment of the trial court is vacated, and this case is remanded for further
proceedings consistent with this opinion. Costs are taxed one-half against the Appellee,
John R. DeBerry, and one-half against the Appellant, Cumberland Electric Membership
Corporation, for which execution may issue if necessary.

                                                 _________________________________
                                                 BRANDON O. GIBSON, JUDGE




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