                                                                                    FILED
                                                                                  Aug 13, 2020
                                                                                  10:28 AM(CT)
                                                                                   TENNESSEE
                                                                              WORKERS' COMPENSATION
                                                                                 APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Custodio Lopez                                )   Docket No.      2019-08-0785
                                              )
v.                                            )   State File No. 51638-2019
                                              )
Fayette Janitorial Service, LLC, et al.       )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Deana C. Seymour, Judge                       )

                             Affirmed and Certified as Final

The claimant filed a petition alleging he was injured when he fell from a ladder while
working for the employer. In response, the employer filed a motion for summary judgment,
arguing that the claimant was an independent contractor, not an employee. Following a
hearing, the trial court granted the employer’s motion for summary judgment, concluding
the employer had shown that the claimant’s evidence was insufficient as a matter of law to
establish an employment relationship, an essential element of the claimant’s case, and that
there were no genuine issues of material fact. The trial court dismissed the claim with
prejudice, and the claimant has appealed. We affirm the trial court’s order and certify it as
final.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge David F. Hensley and Judge Pele I. Godkin joined.

Custodio Lopez, Horn Lake, Mississippi, claimant-appellee, pro se

Paul Nicks, Germantown, Tennessee, for the employer-appellant, Fayette Janitorial
Service, LLC




                                             1
                                     Memorandum Opinion 1

       Custodio Lopez (“Claimant”), a resident of Horn Lake, Mississippi, alleged he
suffered an injury arising out of and in the course and scope of his work for the purported
employer, Fayette Janitorial Service, LLC (“Employer”). In his petition for benefits,
Claimant asserted that on May 27, 2019, he was working on a ladder at a job site in
Memphis, Tennessee, when he fell, resulting in injuries to his right arm and wrist, back,
and left leg. 2 Employer’s workers’ compensation insurer filed a notice of denial, asserting
that Claimant was an independent contractor and that there was no employee/employer
relationship.

        Thereafter, Employer filed a motion for summary judgment, arguing that Claimant
was unable to come forward with sufficient evidence of an essential element of his claim,
i.e., the existence of an employment relationship, and that Employer was entitled to
judgment as a matter of law. In support of its motion, Employer filed a statement of
undisputed facts and produced two documents, one entitled “Independent Contractor
Agreement” and the other entitled “Subcontractor I-9 Compliance Agreement,” both
signed by Claimant. In addition, Employer submitted an affidavit from Employer’s CEO
in which she stated: (1) Claimant operated his own painting business; (2) Claimant
maintained his own workers’ compensation insurance coverage but had allowed it to lapse
prior to the date of the alleged accident; (3) Claimant was paid with a Form 1099 as an
independent contractor and was expected to pay any workers he hired out of that payment;
(4) Employer did not provide Claimant any tools or materials; and (5) Claimant could
refuse to accept any assignment and could offer his services to other companies.

       Claimant did not respond in writing to Employer’s dispositive motion or statement
of undisputed material facts as required by Rule 56 of the Tennessee Rules of Civil
Procedure. However, he did participate in the summary judgment hearing. In granting
Employer’s motion, the Court deemed the facts as stated by Employer to be undisputed in
accordance with Rule 56.03. It concluded Employer had properly supported its motion and
had come forward with sufficient evidence to show Claimant would be unable to establish
the existence of an employment relationship, an essential element of his claim. The court
further concluded Claimant had not shown any genuine issues of material fact, and
Employer was therefore entitled to judgment as a matter of law. Claimant has appealed.


1
  “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
2
  At the time the petition for benefits was filed, Claimant was represented by an attorney. However, the
attorney withdrew as of February 7, 2020, and Claimant has proceeded in a self-represented capacity since
that time.
                                                   2
        A trial court’s ruling on a motion for summary judgment is reviewed de novo with
no presumption of correctness. Wallis v. Brainerd Baptist Church, 509 S.W.3d 886, 895
(Tenn. 2016) (“[W]e make a fresh determination of whether the requirements of Rule 56
of the Tennessee Rules of Civil Procedure have been satisfied.”). A motion for summary
judgment should be granted when “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Tenn. R. Civ. P. 56.04. The burden is on the party pursuing summary judgment
to demonstrate both that no genuine issue of material fact exists and that the moving party
is entitled to a judgment as a matter of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76,
83 (Tenn. 2008). If the moving party makes a properly supported motion, the burden of
production then shifts to the nonmoving party to demonstrate the existence of a genuine
issue of material fact at the summary judgment stage. Rye v. Women’s Care Ctr. of
Memphis, PLLC, 477 S.W.3d 235, 265 (Tenn. 2015).

       In his notice of appeal, Claimant stated he disagreed with the trial court’s decision,
but he did not identify any legal issues for review or assert how he believed the trial judge
had erred in granting Employer’s motion. Moreover, Claimant did not file a brief or any
other statement in support of his appeal, so we are unable to discern any factual issues for
review. As stated by the Tennessee Supreme Court, “[i]t is not the role of the courts, trial
or appellate, to research or construct a litigant’s case or arguments for him or her.” Sneed
v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010).
Indeed, were we to search the record for possible errors and raise issues and arguments for
Claimant, we would be acting as his counsel, which the law clearly prohibits. Webb v.
Sherrell, No. E2013-02724-COA-R3-CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct.
App. Aug. 12, 2015). In accordance with Tennessee Code Annotated section 50-6-
239(c)(7), we must therefore presume the trial court’s factual findings are correct, unless
the preponderance of the evidence is otherwise.

        We conclude the trial court did not err in determining that Employer filed a properly
supported motion for summary judgment and that Claimant’s failure to respond to
Employer’s statement of undisputed facts rendered those facts undisputed for purposes of
the motion. We further conclude the trial court did not err in granting Employer’s motion
and dismissing this case. We therefore affirm the trial court’s order in all respects and
certify it as final. Costs on appeal are taxed to Claimant.




                                             3
                 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                   WORKERS’ COMPENSATION APPEALS BOARD

Custodio Lopez                                        )      Docket No. 2019-08-0785
                                                      )
v.                                                    )      State File No. 51638-2019
                                                      )
Fayette Janitorial Service, LLC, et al.               )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Deana C. Seymour, Judge                               )

                                   CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 13th day
of August, 2020.


 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Custodio Lopez                                                      X     custodiolopez1962@gmail.com
 Paul Todd Nicks                                                     X     pnicks@travelers.com
 Deana C. Seymour, Judge                                             X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
