### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septembe r 5, 2000 S ession ROY BAINES v. WILSON COUNTY, TENNES SEE, ET AL 

### . Appeal from the Chancery Court for Wilson County No. 96464 C.K. Smith, Chancellor

No. M2000-00830-COA-R3-CV - Filed February 7, 2002

This appeal involves a suit for retaliatory discharge brought by the plaintiff against Wilson County, Wilson Emergency Management Agency and the plaintiff’s supervisor. The plaintiff asserts that he was fired in retaliation for filing a worke rs’ comp ensation claim. The trial court dismissed the plaintiff’s claim because, it held, Wilson County and WilsonEmergency Management Agency wer e bothimmune pursuant to the Tennessee Governmental Tort Liability Act. Further, it held that the plaintiff did not allege a prima facie case of reta liatory discharge against his supervisor because his supervisor

was not his employer. We agree and, there fore, affirm the

holdings of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P ATRIC IA J. C OTTRELL , J., delivered the opinion of the court, in which W ILL IAM C. K OCH , J R . and W ILL IAM B. C AIN , JJ., joined. Neal Agee, Jr., Lebanon, Tenness ee, for the appe llant, Roy B aines. Christopher

W. Cardw ell, Nash

vil le, Tennessee, for the appelle es, Wilson County T ennessee, Wilson CountyEmergency Management Agency, and Da vid Hale, individually, and in his offi cial ca pacity as Chief of the Wilson Emergency Management Agency. OPINION
The issue presented

to this court is whether the trial court correctly granted the defendant’s motion to dismiss based on the pleadings pursuant to Tenn. R. Civ. P. 12.03. When presented such a motion, the cour

t must take all the factual allegations alleged by the plaintiff as true. Waller v. Bryan , 16 S.W.3d 770, 773 (Tenn. Ct. App. 1999). Therefore, we outline those allega tions below. Roy Baines, the plaintiff in the underlying action and the appellant herein, was employed

as a firefighter and ambulance driver by the W ilson Emergency Management Agency (“WE MA”) and its predecessor from

September of 1986 to January 29, 1996. WEMA is a governmental entity and a political subdivision of Wilson County. On or about May 10, 1993, Mr. Baines was injured in a work-rel ated acc ident and, due to his impairment, filed suit to obtain workers’ compensation benefits. The case settled by an Agreed O rder for 50% permanent partial impairment.1 The General Assembly has l imited t he at will doctri ne in s everal ins tance s. For example , i t has creat ed a retaliatory dis charge cause of act ion for employees di scharged because t hey refused to parti cipate in or remain s il ent about i ll egal acti vit ies . Tenn. Code Ann. § 50-1- 304, whic h was made appl icabl e to l ocal governments in 1997. Mr. Baines does not alle ge his t ermination was i n violat ion of thi s st atute. -2- Thereafter

Mr. Baines returned to work with restrictions and was assigned to a position as a dispatcher. Mr. Baines claims the schedule and other requirements of the position caused h im to suffer physical exhaustion and emotional stress. Consequently, h e took voluntary sick leave and requested that he be placed in another dispatching position with a shorter shift, but that request was deniedby his supe

rvisor, M r. Hale. Shortly the

reafte r, upon the

expirat ion of Mr. Baines’ s s ick leave, Mr. Hale terminated Mr. Baines’s employment.
David Hale, the Chief of WEMA, is solel y responsible for all the employment decisions made about the

WEMA sta

ff. Acc ording to M

r. Baines , Mr. Hale

made it k

nown t hat WEMA employees were no t t o file lawsuits against WEMA to claim workers’ compensation benefits and that if they did so they would be considered unfaithful and no longer allowed to work a t WEMA.
Mr. Baines fi led suit in C h ancery Court for the common law tort of retaliatory discharge against Wilson County, WEMA and Mr. Hale, both individually and in hi s official capacity. Mr. Baines alleged that Mr. Hale’s actions were discriminatory a nd in retaliation for his filing a worker s’ compensation claim. The defendants filed a motion to dismiss claiming immunity. The trial court granted this motion, and Mr. Ba

ines is before thiscourt on a ppeal.
The issue bef

ore us is w

hether t he trial cour t corre ctly gra nted the d

efenda nts’ motion

to dismiss, first with

respec t to the suit

against Wilson Coun

ty and WE

MA, and second, asto the suit against Mr. Hale. This is a question of law, therefore the scope of review for the Court

of Appea ls is de novo with no presumption of correctness for the trial court’s conc lusion. Montgomery v. Mayor of City of Covington , 778 S.W.2d 444, 445 (Tenn. Ct. App. 1989). I. The Tort of Retaliatory Discharge
The common la

w tort of r

etaliato ry or wrongful disc

harge w as first announced b y the TennesseeSupreme Court in Clanton v. Cain-Sloan Co. , 677 S.W.2d 441 (T e nn. 1984) , as a limitation to the doctrine of at-will employment. The doctrine of at-will employment provides that employees working without an e mployment c ontract

are gen erally subject to termination for good cause, bad cause, or no cause at all without the employer being guilty of a leg al wro ng. Stein v. Davidson Hotel Co. , 945 S.W.2 d 714, 716 (Tenn. 199 7); Watson v. Cleveland Chair Co. , 789 S.W.2d 538, 540 (Tenn. 198 9). While this doctr ine is still e

nforce d by the co

urts of thi s state, it has been limited by t

he Gene ral Asse mbly 1 and by the Tennessee Supreme Court. In Clanton the T ennes see Supreme C ourt held that an e mployer c ould not dis charge an at-wi ll employee solely because the employee had sough

t worker s’ compensation benefits on the basis that such discharge violated the public policy of the state, as evidenced by the statut es on work ers’ compensation. Clanton , 677 S.W.2d at 445.
In Anderson v. Standard Register Co. , 857 S.W.2d 555 (Tenn. 19 93), aff irming its prior hold ings, the Tennessee Supreme Court held that generally at-will employee s may be discha rge d-3-

from employment without cause, but they cannot be discharged for asserting a c laim for worker s’ compensation benefits. The Court listed the elements required to make a

prima fa cie cas e for this cause of action:
Basedon the principles stated in Clanton v . Cain-Slo an Co., . . . the following elementsare fou nd to establish a cause of action for discharge in re taliation for asserting a workers’ compensation claim: (1) The plaintiff was an employee of the defendant at the time of the injury; (2) the plaintiff made a claim against the d efendant for workers’ compensation benefits; (3) the def endant terminated th e plaintiff’s employment; and (4) the claim for worker s’ compe

nsation be

nefits was a substantial factor i n the e mployer’s motivation to terminate the employee’s employme

nt.
Anderson , 857 S.W.2d at 558. The “burden of proof rests, of course , upon the plaintiff to prove the elements of the cause of action . . . .” Id

.

II. Mr. Ba

ines’s Suit Against W

ilson County

and WEMA
Mr. Baines ar

gues that th e trial court erred when it dismissed his claim for retaliatory discharge against W

ilson County

and WEMA . Both these governme

ntal e ntit ies claim

immunity pursuant to the Governmental Tort Liability Act (“GTLA”) . We find that Wilson County and WEMA are immune pursuant to this Act and, therefore, aff irm the trial court’s dismissal of the suit against them.
In 1973, the

Genera l Assembly

enacte d the GTLA

to “codif y the gene

ral commo n law rule that ‘all gove rnmenta l entitiesshallbe immune from suit for any injury which may result from the activities of such governmental entities.’” Limbaugh v. Coffee Med. Ctr. , 59 S.W.3d 73, 79 (Tenn. 2001) (qu oting Tenn . Code Ann . § 29-20- 201(a)) . To that e nd the GTL

A provide s: Except as may be otherwise provided in this chapter, all governme ntal entit ies shall be immun e from su it for any injury which may result from the activities of such governmental entities wherein such governmental entities are e ngaged in the exer

cise and discharge of any of their functions, governmenta l or proprietary.
Tenn. Code Ann. § 29-20-201. This provision granting immunity is subject to waiver, and those instances of waive

r, found in the GTLA’s provisions, provide the basis for liability. Limbaugh , 59 S.W.3d at 79; see Tenn. Code Ann. § 29-20-202 (neglige nt opera tion of moto

r vehicl es); § 29-20- 203 (unsafe streets and highways); § 29-20-204 (dangerous structures) ; § 29-20-205 (negligent act or omission of employees). A personnel action, s uch as dis charge , obviously does not f

it within the first thr ee waiv er provi sions.
With regard to the final waiver of immunity provision, that for i n juries caused by the negligent acts or omissions of employees, this court has stated:
An action for

retaliatory discharge is by its very nature an action based on the intent of the employer to discharge the employee for ava ilin g himself of the statutory2 In support of an othe r argu me nt, the de fendant s have c it ed Johnson v. Johnson , No. 01- A-019204CV00166,

1992 WL 184743, at *2 (Ten n. Ct. App. A ug. 5, 1992) (Perm . app. denied, concurring in results only). Although M r. Baines did not i ntroduce Johnson into t he discuss ion, he does poi nt out that one of it s fi ndings is that a r etalia tory disc harge clai m sounds in contract . Therefore, he argue s that if this court shou ld decide that the claim is a contract cau se of act ion ra ther

than t ort, then we s hould fi nd that the GTLA imm unity doe s not a pply . We declin e to fin d tha t a claim based on retal iator y discharge i s a breach of cont ract acti on because Johnson has no pr ecedential value and becaus e our cou rts hav e con sistently desc ribed the co mm on la w re taliatory disch arge caus e of a ction as a tort.
An opinion wh ich is designated denied concurring in results only (“DCR O”), now call ed “Not f or Citation ,” “shall not be .

. . cit ed by any j udge in a ny tri al or appel lat e court

deci sion, or by any l it igant in any brief

. . .” e xcept in li mited c irc umstance s which are not pres ent herei n. Tenn. R. S. Ct. 4. Therefore, t he Johnson opini on may not be rel ied on by e it her par ty or thi s cour t, and we decl ine t o consi der i t as the ba sis for a ny holdi ng.

Our courts have r epe atedly desc ribed this cau se of a ction as a tort. See Stein v. Da vidso n H otel C o., 945 S.W.2d 714 (Ten n. 1997); Chism v. Mid-South Mill ing Co ., Inc., 762 S.W.2d 552 ( Tenn. 1988) ; Smith v . Lincoln B rass Wo rks, Inc. , 712 S.W .2d 470 (T enn. 1986 ); Van Cle ave v . McKee Baki ng Co . 712 S.W .2d 9 4 (T enn . 198 6); Clant on , 677 S.W .2d a t 441 ; Mo ntgom ery , 778 S. W.2d at 444 ( applyi ng the GTLA to hol d the gove rnment i mm une). In addi ti on, in Hodges v. S.C. Toof

& Co ., 833 S.W .2d 89 6 (Ten n. 199 2), the cou rt held that pu nitive dam ages, wh ich ar e app rop riate in tort acti ons and not in contr act act ions, are avail able in a suit for ret alia tory dis charge. -4- remedy under the workers’ compensation statutes. The refor e this would not be a negligent act or omission and immunity would not be removed at all. Thus t

he city enjoys complete immunity from this action. Montgome ry , 778 S.W.2d at 445. Thus, under the GTLA, a governmental entity is immune from liability for the common law tort of retaliatory discharge.
The Montgome ry holding was appliedin Williams v. Williamson County Bd. of Educ. , 890 S.W.2d 788, 790 (Tenn. Ct. App. 1994), wherein this court held that retaliatory discharge is not

a negligent act or omission and, therefore, immunity is not removed. See also Coffey v. ChattanoogaHamilto n County Hosp. Auth. , 194 F.3d 13 11, 1999 W L 824870 ( 6th Cir. 199 9) (unpub li she d opinion) (prior to

1997 amendment toadd governments as employers, Tennessee courts interpr eted the statutory cause of

action for

retalia tory discharge under the w histleblow er statut

e as subject to the GTLA, and governmental entities were immune from suit).
The holdings in both Montgome ry and Williams are b ased upon t he general grant of immunity in Tenn. Code Ann. § 29-20-201 andthe fact that a retaliatory discharge claim does not fit in any of the specified circumstances under whic h immunity is waived. Under Montgome ry and Williams , Mr. Baine s’s claim against W

ilson County

and WEMA

was prop erly dismi ssed bec ause the local government has not waived its immunity for injuries resulting from common law wrongful or retaliatory discharge. 2 Accordingly, any claim aga inst Mr. Ha

le in his of

ficial c apacity

was also properly dismissed.
Another basis for

liability of

the government when an intentional tort is involved has been found to exist in s pecific

situations . In some

cases, plaintiffs have sued local governmental entities alleging that independent acts of negligence on the part of government employees led to, contributed to, or allowed injuries directly resulting from intentional acts. Those cases involve interpretations of another part of the GTLA. The removal of immunity for injury proximately caused by a negligent3 That except ion to l iabi li ty for neg ligen t acts inc lude s injurie s arising out o f “false imp rison me nt pu rsuan t to a mitt imus from a cou rt, false arr est, m aliciou s pro secu tion, in tention al tresp ass, ab use o f pro cess, libe l, sland er, de ceit, interfe renc e w ith co ntrac t rights, in fliction of m ental a ngu ish, inv asion of rig ht of p rivac y, or c ivil righ ts.” -5- act or omission of any employee is subjec t to specif ic exceptions, including where the “injury arises out of” enumerated intentional torts. Tenn. Code Ann. § 29-20-205(2). 3
In Potter v. City of Chattanooga , 556 S.W.2d 543 (Tenn. 1977), the plaintiff sued the city for false arrest and assault and battery by city employee s, police officers or jailers. She later amended her complaint

to add a claim that the city had been negligent in screening and super vising its employees. T he Supreme C ourt determined that the “true bases” for the injuries f or which recovery was sought were false arrest, assault and ba ttery. “The amendment, while level ing additional charges of negligence against the City, does not alter the fact that the injuries that are the subject of the action ‘aro se out’ of the battery and the false arrest, and w as not effective to avoid the immunitygranted the City under T.C.A. § 23-3311 [now § 29-20-205].” Potter , 556 S.W.2d at 545. The Court further

determined that f

alse ar rest and battery were within the exception s to liabilit y set forth in the statute. The statutory exception listed false arrest, but didnot include battery, and later cases in terpre ted the e xception as includ ing all inte

ntional tor

ts.
In a r e cent decision, the Supreme Court overruled Potter’s broad interpretation of the intentional tort exception to liability for negligent acts of employees. Limbaugh , 59 S.W.3d at 73. In that case, the plaintiff’s mother was assaulted by a nursing assistant employed by a county owned nursing home. The plaintiff sued the nursing a ssistant fo r the assault and the injuries resulting theref rom. He also sued

the count y medical c enter, a

governme

ntal entit y, for br eaching its duty to take reasona

ble precautions to protect its residents from foreseeable acts of a violent staff member, alleging that the medical center had prior notice of the nursing assistant’s propensity for violence. The trial court found that

the medical center had ample forewa rning of the potential for assault and aw arded a judgment a

gainst the governme

ntal entit y for its negligence . The Cour t of Appe als reversed this judgment on the basis that the governmental entity could not be held liable, even for negligen t acts of i ts employees, beca

use of the statutory immunity for injuries “arising out of” the intentional conduct of its employees. In so holding, the Court of Appeals relied on Potter

. The Supreme Court reversed and held the medical ce nter was liable for its negligenc e because it had assumed responsibility for the care and s a fety of it s patientsand owed a duty to exercise reasonable car

e to protect them

from foreseeable harm. The cour t found the center acted negligen tly in failing to protect

the patient from the foreseeable risk that she would be a ssaulted by a staff member known to be physically aggressive. Limbaugh , 59 S.W.3d at 81.
With regard to the intentional tort exception to liability, the Court reversed P o tter and subsequent cases which

evidenced an “overly broad applica tion of the intentional tort exception.” Id

. at 83. The Court held that “Section 29-20-205 of the GTLA removes immunity for injuries caused by the negligent act or omission of a governmental employee except whe n the injury arises out of only those specified torts enumerated in subsection (2) .” Id

.-6-

The pra ctical r esult of th is change in judicia

l interpr etation w as expla

ined as f ollows: Applying our conclusions to the present case, w e first r

eiterat e that Ms. Ray’s ass ault of Ms. Limbaugh was a fo

reseea ble conse quence of CMC’s fa

ilure to take re asonable precautions to protect its residents from the risk of abuse by this aggressivenursing assistant

. Based on the plain language of § 29-20-205, the injury i nflicted on Ms. Limbaugh was “proximately caused by a negligent act or omission” of this nursing home’s supervis ory pers onnel. Although it is that negligence of which the plaintiff complain s, it is clear that Ms. Limbaugh’s injuries “ arose ou t of” the intentiona

l torts of assault and battery committed by Ms. Ray. Beca

use these torts are conspicu ously absent from the intentional tort exception rendering governmental entitiesimmune from liability for injuries, we hold that the clearly negligent defendant is not immune under this exception.
Id

. Retaliatory or wrongf ul discharge is not one of the intentional torts enumerated in Tenn. Code Ann. § 29-20-205(2). Thus, under Limbaugh , Wilson County and WEMA would not enjoy immunityfor n egligent

ly all owing an employee, Mr. Hale herein, to intentionally cause Mr. Baines’ s injury. However, Mr. Baines made no claim that Wilson County was negligent in hiring, training, supervising, or retaining Mr. Hale. There w ere no a llegation s as to the foreseeability of Mr. Hale’s actions or any other

of the elements required to be plead in a negligence cause of action. In

other words, there was no claim of independent acts of negligenc e by the governmental entities or their employees. Thus, Limbaugh does not sa ve Mr. Ba

ines’s a ction aga inst the go vernmen

tal entitie s.
II. Mr. Ba

ines’s Suit Against M

r. Hale I ndividually
We now turn to

Mr. Baine s’s claim

for retaliatory discharge against his supervisor Mr. Hale. Mr. Hale ar

gues that , even if

the cour t takes a ll the facts alleged by Mr. Baines as true, Mr. Baines has failed to state a

claim for retaliatory discharge against him in his individual capacity because he is not Mr. Baines’s employer. One of the requir ed eleme nts of a retaliatory discharge claim is that the plaintiff was an employee of the defendant a t the time of the injury. Anderson , 857 S.W.2d at 558.
The issue before us, whether a supervisor can be individually liable for retaliatory discharge , is not one of first impression. In Williams v. Williamson County Bd. of Educ. , this court held that individual members of

a board of education could not be liable for retaliatory discharge. Williams, 890 S.W.2d

at 790. Th

is court held that:
We do not t

hink the c omplaint st

ates a c ause

of action against the individuals for a retaliatory dischar

ge. The d ischarg e, if

any, was by the board, n ot by the individuals

. The plaintiff was not an employee of the individuals.
Id. at 790.4 The acti on arose under the s tatut e prior t o its 1997 amend ment which added governm ents as employers subject

to an action for discha rge in retaliation fo r refusing to keep silen t about o r to participate in illegal activities. -7- T his court has also addressed whether a super visor is an “employer” subject to liab ility i n the c ontext of a statutory cause of action for retaliatory discha rge. In that statute, the General Assembly has provided protection from adverse employment actions based on a n em ployee ’s refusal to participate in or remain silent about illegal activities, Tenn. Code Ann. § 50-1-304, known as the whistleblower

statute. In a cas e involving an alle gation of dischar ge in violation o f the stat

ute, while immunityof the governmental entity was acknowledged, 4 the plaintiff argued t hat the supervisor was an employer. This court disagreed, finding:
Plaintiff argues that the previous ly-discu ssed authority of a utility supe

rintende nt to hire employee s under th

e Act mak es the util ity super intenden t “ in effec t the employer of the plain tiff and others simi larly situ ated.” Pl aintiff’ s straine d constru ction fa ils, in that while

a superin tendent m ay have statutory authority to retain and term inate Plaintiff and others, i t is o nly in acting within the scope of his duties as general m anager for HUB, the employer, that Defendant Hall could have effectua ted th e termination of Plaintiff. The termination of Plaintiff was not an action in Hall’s individua l capac ity, but ra

ther an a ction tak en on beh alf of the

employer , HUB.
Smithv. Harriman Utility Bd. , 26 S.W.3d 879, 885 ( Tenn. Ct. App. 2000). The court determined that because the employer, a governmental entity, was immune , the supe rvisor wa s immune fo

r acts taken in his official capacity. Additionally, he had no liability in his individual capacity because he was not the em

ployer. T hus, Mr. Ba

ines’s a llegation s that Mr. H ale “is th e Chief of WEMA and solelyand individually responsible for all decisions to hire and fire any member of the WEMA staff

. . . .” are not sufficie nt to es tablish Mr. Hale as an employer. See also Coffey v. ChattanoogaHa milton County Hosp. Auth. , 932 F. Supp. 1023, 1026 (E.D. Tenn. 1996) (declining to ascribe liabil ity to indi viduals under the whistleblower statute because neither Te nnessee courts nor the legislature had defined “employer” in that statute to include individual supervisors). Similarly, in Pewitt v. B uford , No. 01A01-9501-CV-00025, 1995 WL 61432 7 (Tenn . Ct. App. Oct. 20, 1995) (no Tenn. R. App. P. 11 application filed), this court found that a county was a public employer for purposes of Tenn. Code Ann. § 8-50-601 et seq., the Public Employee Political Freedom Act of 19 80, which

prevent s p ubl ic employ ers fro m disciplin ing or othe

rwise discriminating against public emp loyees f or commun

icating with elected

public of ficials. Because the count y was the employer , the cour

t determined, the i

ndividual supervis ors were

not.
Our holding thatWilliamson County (hereinafter County) is the “public employer” is dispositive

of the PEPFA

claims ag ainst def

endants Buford a

nd Frensle

y, beca use they were the agents of County rather than [plaintiff’s] employer, and the Act imposes liability only upon the “public employer.”
Penitt , 1995 WL 614327, at *5.
The GTLA has a similar dichotomy, defining “employee” and “gover nmental entity” and clearly distinguishing the two. “Employee” includes any official, officer, employee or member

of5 We are a ware t hat t he GTLA, speci fic all y Tenn. Code Ann. § 29-20-310, states that if a g ove rnm ental e ntity is immun e, the employee can be liabl e. However, for an emp loyee to b e liable, a cause of act ion must exis t aga inst

the employee in hi s or he r indi vidual capaci ty. It i s st illnecessar y that al l the e lements of t he tort are al leged by the plaintiff. He re, M r. Bain es ha s not d one so an d did not sta te a prim a facie case o f retaliato ry d ischa rge a gain st M r. Ha le. -8- any board, agency or commission and any officer , employee or servant of a governmental entity. Tenn. Code Ann. § 29-20-102(2). Thus, an employee works for the gove rnmental entity and is not the same as or equivalent to that entity. A supervisor, even an appointed off icial, is an employee under the GTLA. As the Pewitt court reasoned, status as an employ ee is inconsistent with status as an employer.
In 1997, the whistl eblower statute was amended to extend its protection, and the ca use of action based o n it, to public employees. That change was accomplished by including in the definition of employer “the state, or any m un icipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity thereof.” Tenn. Code Ann. § 50-1- 304(g)(2). Thus, the legislature has chosen, in one specific type of retaliatory dischar ge, to define the employer subject to suit as the governmental entity, not an individual employee.
We find no basis for adopting a different meaning in the case of a com mon law claim. In fact, the Supreme C ourt’s lis t of eleme nts for su ch a cau se of ac tion clea rly implies that employer does not includ

e an empl oyee, even a sup ervisor . The sec ond eleme nt of a cl aim for retaliat ory discharge is that the

plaintiff made a c laim against

the defenda

nt for wor kers’ c ompensat

ion benef its. Mr. Baines did

not file a workers’ compensation claim against Mr. Hale. Instead this claim was filed against the county.
From all of the

above, w e find tha

t Mr. Baine s failed t

o state a claim for retaliatory discharge against Mr. Hale in his indivi dual cap acity be cause Mr. Baines was not an employee of Mr. Hale. 5 He was an employee of WEMA and Wilson County. Theref

ore, we find that t he trial c ourt cor

rectly dismissed Mr. Baines’s claim against Mr. Hale.
III. Conclusion
We find that W

ilson Co unty and WEMA are both immune from suit pursuant to the TennesseeGovernmental Tort Liability Act. That immunity also applies to Mr. Hale acting in his official capaci ty . Further , Mr. Baine s has not st ated a pr ima faci e case a

gainst Mr. Hale in hi s individual capacity for retaliatory discharge because Mr. Hale is not Mr. Baines’s employer. Therefore, we affirm

the decision of

the trial court and remand this cause for any nec essary further proceedings. All costs are taxed to the Appellant, Mr. Baines.

___________________________________ PATRICIA J. COTTRELL, JUDGE