### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON March 4, 2002 Sessi

on BETTY BERRYHILL v. CHARLES THOM AS RHODES Direct Appeal from the Juvenile Court for Shelby County No. G8355 Claudia S. Haltom, Juvenile Court Referee

No. W2001-00748-COA-R3-JV - Filed May 2, 2002

This is a child support case with significant appellate history. Pursuant to the TennesseeSupreme Court’s opinion in Berryhill v. Rhodes , 21 S.W.3d 188, 188-89 (Tenn. 2000), this

case was before the trial court in order to determine Dr. Rhode’s retroact ive child support obligations. The court appliedthe Child Support Guidelines fr o m 1989 until the date the child reache

d majority, in September

1995. The court deviated from the guidelines in assessing Dr. Rhodes’s child support obligation from 1977 to 1989. The court calculated the total arrearage as $180,202.00.In assessing interest on the judgment, the court determined that interest should accrue from August 21, 1996, the date of the trial court’s original judgment in this matter. Both parties take issuewith the trial court’s decision. We reverse in part, affirm in part, and remand for proceedings consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in part; Affirmed in part; and Remanded
D AVID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and D’A RMY B AILEY , S P
. J., joined. Robert L. Green,

Memphis, Tennesse

e, for the appell

ant, Charles Thoma

s Rhodes.
Mitchell D. Moskovitz and Ad

am N. Cohen, Memphi

s, Tennessee, for the

appellee, Betty Be

rryhill.
OPINION
This appeal represents the second time this dispute has been before this Court. In the first trial, the juvenile cour

t denied Ms. Betty

Berryhill’s action for

retroactive child support. The court deniedMs. Berry

hill’s request bec

ause Ms. Berry

hill and Charles Th

omas Rhodes had volu

ntarily entered into an agreement

regarding child support at the child’s birth. The court entered its decision on August 21, 1996. Ms. Berryhill appealed the court’s decision. In the first appeal, this Court determined that an agreement existed between the partieswhich governed Dr. Rhodes’s child

support obligations. Berryhill v. Rhodes , No. 02A01-9701-JV-00011,-2-

1997 Tenn. App. LEXIS 692, at *12 (Tenn. Ct. App. Oct 14, 1997). Further, we stated that section 36-5-101(e)(1) of the Tennessee Code authorized the court to deviate from the guidelines in certain circumstances. Id. Based on the facts and equity between the parties in the case, we stated that it would be “unjust and ina

ppropriate

to apply the guidelines retroactively .” Id. Fin all y, we remanded the case for a de

termination of Ms. B erryhill’s attorney’ s fees. Id. at *15.
Ms. Berryhill

appealed our de

cision to the Tenne

ssee Supreme Cour

t. The court heard

Ms. Berryhill’s appeal and provided the following summary of their opinion:
We gran ted thi s ap peal to d ete rmi ne: (1) whe the r par tie s ma y enter into a private agreement

regarding

the payment of child support outside the Child Support Guidelines; (2) whether

the evidence preponderates against an award of retroactive child support in excess of

the amount agreed upon by the parties; and (3) whether the plaintiff rebutted the pre

sumption that a

two-year average of

income should be used to det e rmine the amount of child support due under the guidelines. After careful consideration, we hold

that a private agreement as to child support payments violates public policy, that the trial court failed to prop erly ap ply the Child Support Guidel ines to determine the amount of child support, and that the plaintiff successfully rebutted the presumption that a two-y ear average of income should be u sed to determine the proper amount of child support. We remand the case fo r a n application of the Child Support Guideli nes to determine the amount of child support that would be owed und er th e guidelines and, if appropriate, for findings of fact justifying a conclusion that t

he application of

the guideli

nes woul d be unjust or inappropriate. Berryhill v. Rhodes , 21 S.W.3d 188, 188-89 (Tenn. 2000).
The juvenile court heard the case on remand and conducted two separate hearings. On January 26, 2001, the court continued the case, providing the following rea sons for its decision: 1. A fact finding

hearing with re

gard to actual m

edical and denta

l expenses;
2. Proof regardi

ng actual costs t

o support said

child p rior to implementation of guidelines; 3. Proof regar

ding deviation fr

om guidelines;
4. Argument pertaining to whether intere st on arrearage should be simple or compound.1 The couple’s c hild was born on S eptember 5, 1977.
2 The Ch ild Supp ort Guid elines beca me effe ctive on O ctober 13 , 1989. -3- At the second hearing, the court concluded that the application of the guidelines from 1977 1 to 1989 would be “unjust or in appropriate.” 2 The court then calculated the pre-Child Support Guidelines arrearage. Based on Ms. Berryhill’s proof regarding living expenses and the expenses of the child, the cour

t determined the p

re-guideli ne a rrearage to be $87,720. Next, the court determinedthe arrearag

e for the perio

d of tim e beginning with the creation of the Child Support Guidelines. After giving Dr. Rhodes credit for other child support obligations and for amounts previously

paid to Ms. Berryhill during this time, the court concluded that Dr. Rhodes owed $87,324 in back child suppor

t. The court also d

etermined th

at Mr. Rhodes owed Ms. Berry hill $5,158 to reimburse her for certain medical and insurance expenses she incurred as a result of raising the child from October 1989 to September 1995. Accordingly, the court added the above totals and calculated the total arrearage as $180,202.
The court the n assessed interest on the arrearage. The court ruled that interest would be assessedfrom August 21, 19 96, the date of the

original jud gment, until the full debt is paid. The court calculate

d the interest on th

e arrearag e as follows:
a. 1996 - $7,761.03 (131 day s) b. 1997- $22,555.56 c. 1998- $25,262.23 d. 1999- $28,293.70 e. 2000- $31,688.94 f. 2001- $6,320.42 (65 day s) Thus, the court concluded that the total arrearage, including interest, was $302,083.88. The court ruledthat interest, in the amount of $97.28, would continue to accrue daily until paid for 2001. The court also stated that int

erest would contin

ue to accrue at a

yearly rate of 12% on any unpaid balance. Fin all y, the court ordere

d that Dr. Rhodes pa

y Ms. Berryhill’s accountant’s fee, pay Ms. Berryhill’s attorney’s fee, and pay

court costs.
Dr. Rhodes appeals the trial court’s dec ision. The issue, as stated by Dr. Rhodes, is the following:
Did the trial court commit erro r by failing

to compute [the] inter

est award from the date of a judgment for the appellee as is required by T.C.A. [§] 47-14-122?
Ms. Berryhill

raises additional issues for our review. These issues, as stated by Ms. Berryhill are the following:-4-

1. Did the trial court err in refusing to apply the Tennessee D e partment of Human Services Child Support Guidelines retroactively to the date of the child’s birth?
2. Did the trial cour

t err in refusing

to assess in

terest on Father’s child support obligation from the date of the child’s birth?
3. Sho uld Appellee be awarded her reasonable attorney fees and suit expenses incurred in defe

nding this appea

l?
To the extent these issues involve questions of fact, our review of the trial court’s ruling i

s de novo with a presumption of correctness. Tenn. R. App. P. 13(d ); e.g., Berryhill v. Rhodes , 21S.W.3d 188, 190 (Tenn. 200 0). We may not

reverse the tria

l court’s factua

l findings unless

they are contrary to the preponderance of the evidence

. Id. With respect to the court’s legal c onclusions, our review is de novo with no presumption of correctness. Bowden v. Ward , 27 S.W.3d 913, 916 (Tenn. 2000).
Dr. Rhodes contends that the trial court erred in computing interes t from the date of the original trial in

this matter, August 21, 1996. Instead, Dr. Rhodes argues th at the trial court

should have begun computing interest on the arrearage on March 5, 2001, the date the court enter ed i t s judgment upon remand.
The disposition of this issue requires an examination of the su preme court’s opinion in t

his case, viewed in light of relevant case law regarding the effe ct of appellate court opinion s on t rial court judgments. In Gotten v. Gotten , 748 S.W.2d 430, 431 (Tenn. Ct. App. 1987), the trial court required Wife to make mortgage payments on the divorced couple’s r esidence. Wife appealed

that decision, and we reversed, requiring Husband to make those payments as re habilitative alimony. Id. On remand, Wife file

d a motion to compel H

usban d to reimburse her for the payments she had previously

made pursuant to the trial court’s original order. Id. The trial court denied her motion, and Wi fe appealed the

court’s decision. On the second ap peal before this

Court, we st

ated th e following:
The appellate court

acts only upo

n the record in

the case in the trial court and when the a ppellate court e

nters an order mo

difying the

trial court order

it is doin g wha t should have been done in the first instance. The modification of the trial court order should be effective as of the date of the trial court order. Therefore, we hold that a judgment of the appellate court reve rsin g or modifying the trial court judgment providing for periodic payments of alimony or child support is effective as of the date of the trial court judgment, unless the appellate court judgment specifies otherwise. Therefore, the judgment of the trial court refusing to req

uire Husband to

reimburse Wife for the ten monthly mortgage pay ments is reversed.
Id.3 The cases Wife reli ed on were Wade v. Wade , 897 S.W.2d 702 (Tenn. Ct. App . 1994), Inman v. Alexander , 871 S.W.2d 153 (Tenn. Ct . App. 1993), a nd Inman v. Inman , 840 S.W .2d 927 (Tenn. C t. App. 19 92).

-5- This court relied on Gotten in Newton v. Cox , 954 S.W.2d 746, 749 (T enn. Ct. App. 1997). In Newton , Plaintiff sued his former attorney, asserting that the attorney’s fifty perc

ent contingency fee violated ap plicable st atutory law. Id. at 747-48. The tri al court upheld the

contract, and thi

s Courtaffirmed. Id. at 748. The supreme court reversed this Court’s decision, and on remand, the trial court failed

to award Plaintiff the excess funds still held by the attorney. Id. Plaintiff appealed the trial court’s decision. Id. After awarding Plaintiff the excess fees held by the attorney , we turned to the question of post-judgment interest. Id. at 749. Citing our decision and reasoning in Gotten , we held that Plaintiff was entitledto post-judgment interest from the date of the original judgment in this case. Id. Accordingly, because we were “ doi ng what should have b een done in the fir

st instance,” statutory interest accrued on the full amount

of excess fees which should have awarded to Plaintiff in the original judgment. Id. at 749 n.2. (quoting Gotten , 748 S.W.2d at 431).
This Court provided additional insight to Mr. Rhodes’s issue in Bu nch v. Bunch , No. 03A01-9805-GS-00156, 1999 Tenn. App. L EXIS 202 (Ten

n. Ct. App. March 24, 1999) ( no perm. app. filed ). In the first appeal of that ca se, we held that c

ertain marital pr

operty was

incorrectly valuedby the trial c

ourt. Id. at *2. We assigned the appropriate value and remanded the case to the trial court “for

the purpose of redetermining the apportionment of the [parties’] marital assets.” Id. On remand, the tri al court ruled that Wife was entitled to an additional award. Id. at *3. Wife appealed the trial court’s decision, asserting that the trial court erred by failing to award her inter

est on the new award f

rom the date of the

origin al judgment. I

d. at *9. Wife cited se

veral cases to support her contention that she was entitled to interest

on the new award which should have accrued from the date of the or

iginal judgment

. 3 Id. at *10. We distinguished those cases from Wife’s case, stating that in those case

s, “the appellate

court modified the lower court’s judgment, i.e. , changed specific m onetary aw

ards therein.” Id. In Wife’s case, we required the trial court to take further action on remand. Id. at

*11. We left the actual di

stribution of the ma

rital property

to the trial court. Id. Therefore, because we could not act upon the record and modify the trial court’s judg

ment, we stated that “a final determination regarding the division of property occur redonly upon remand of the case and the trial court’s subsequent judgment.” Id.
In the present case, the supreme court held that private agree

ments regardin

g child support violate public policy. Berryhill

v. Rhodes , 21 S.W.3d 188, 192 (Tenn. 2000). The court remanded the case in order fo

r the juvenile

court to determine the a

mount of child suppor

t Dr. Rhodes would owe under the guidelines. Id. at 192-93. The court also ruled that the trial court should determine if an upward or downward deviation from the guidelines would be appropriate in this case. Id. at 193. Further, the court held that Ms. Berryhill should be permitted t o offer additi

onal evidence re gardingthe child’s medical and dental expenses. Id. at 194. Finally , the court held th

at Ms

. Berryhill had successfully rebutted the presumption that a two-year average of D

r. Rhodes’s income should be used to determine the proper amount of child support

due under the gu

idelines. Id. The court permitted Dr. Rhodes to introduce additional evidence on this issue. Id.4 In contrast , ourdecisions

in Gotten and Newton effecti vely deter

mined the appropr

iate j udgment to be entered upon remand. By

revi ewing the r ecor d bef ore u s in thos e cas es, we could deter mine the corr

ect amount of t

he award. It fol lows that t

he trial court did not

have to take

further a

ction in order to ent

er its judgment upon remand in Gotten and Newton . Based on the rec ord before u s in those cases, we were able to “do what s hould have been done in the first instance.” Therefor

e, it was appropria

te to assess

interest f

rom the date of the origi nal judgment by the trial court.

5 Section 26-5-101(a)(5) state s that a judgme nt for child suppo rt arrearage “shall accrue interest from th e date of the arrea rage at the r ate of twelv e percen t (12%) per ann um.” -6- We believe this

case is analogous to our decision in Bunch . Here, the supreme court did not remandthe case in order

for the juvenile c

ourt to sim

ply enter a j udgment in acco rdance with its opinion. The court did

not modify the judgment in order for the trial court to “do what should have been done in the first instance,” as was the case in Gotten and Newton

. The supreme court held that private agreements regarding

child support viola

te public policy, and remanded the case in order for the trial court to

determine the amo

unt Dr. Rhodes would

owe pursuant to

the guidelines. Similar to this Court’s opinion i

n Bunch , the supreme court in thepresent case did not know what eff

ect its opinion would have on the pecuniary amount of the trial court’s judgment upon remand. When the case left the supreme c

ourt, the trial cou

rt was required t

o take further action to determine the amount of Ms. Berryhill’s award. 4 The trial court ha d to determine the proper time frame to calculate Dr. Rhodes’s average gross income, as Ms. Berryhill rebutted the two-ye ar presumption. Further, and more importantly, the trial court had to determine if a deviatio n from the guidelines would be appropriate

under the facts o

f this case. I

n short, the trial c

ourthad to determine, considering additional evidence and argument from the pa rties, the correct a mount of ch ild suppo rt arrearage based upon the supreme court’s opinion.
Section 47 -14-122 of t he Tennesse e Code provi des the fol lowing:
Interest shall be computed on every judgment from the day on which the jury or the court, sitting without a jury, returned the verdict without regard to a motion for a new trial.
Tenn. Code Ann. § 47-14-122 (2001). Because, under the facts of this case, a final determination regarding the child support

arrearage occurred only after the supreme court’s rema nd of the case and the trial court’s subsequent judgment, the court erred by

computing intere

st from August 21, 1996. The date the court

“returned the verdict” pursuant to section 47-14-122 of the Tennessee Code was March 5 , 2001, the date the court entered the final judgment as to the child support ar rearage
. Therefore, interest on the arrearage should accrue from March 5, 2001, no t the date of the trial court’s origina

l judgment. Finally , when the trial court calculated the interest from the date of the original judgmen t , the court compounded the interest at the rate of twelve percent annually . While the trial court used the correct rate o

f interest, 5 the court erred by compounding the interest on the j udgment. The interest on the judgment should have been simple interest, not compound interest as utilized by the6 Curiously,D r. Rhod es did no t file a brief in resp onse to M s. Berryh ill’s three issues. A ccordin gly, M s
.

Berryh ill’s issues are be fore us so lely on the question s and arg umen ts raised in he r brief. -7- trial court. Tenn. Code Ann. § 47-14-102(7) (2001); see also Pertew v. Pertew , No. 03A01-9711- CH-00505, 1999 Tenn. App. LEXIS 445, at *28 & *30 (Tenn. Ct. A pp . July 13, 1999) (

no perm. app. filed ).
Acco rdi ngly, we reverse the trial court’s decision to as sess interest from the date of its original judgment. Further, we hold that the trial court er red in computin

g the interest on the judgmen t. On remand, the trial court must assess simple interest on the judgment from March 5, 2001. The interest must

be computed according to the method provided by section 47-14-102(7) of the Tennessee Code. RegardingMs. Berryhill’s first issue, she contends that the t

rial court erre

d by failing

to apply the child support guid

elines retroac

tively to the d

ate of the child ’s birth. 6 Courts are requir ed to apply the guidelines a

s a rebuttable pr

esumption in

all child support c

ases, “even if th

e order is being sought for a retroactive period before October 13, 1989.” Berryhill , 21 S.W.3d at 192; Tenn. Comp. R. & Regs. Ch. 1240

-2-4-.01(2). B ecause

there is a rebuttable presumption as to the applicab

ility of t he Chil d Support Guideline s, the juvenile cou

rt retains discre

tion in making chil

d support awards, butthe discretion m ust be i mplemented within th e structures of th

e Child Support Guide

lines. Berryhill , 21 S.W.3d at 193. To deviate from th e presumptive amo

unt of child

support due under the guideli nes, the tr ial court m ust enter t he followi ng: [A] written or specific finding that the a pplic ation of the child support guidelines would be unjust or inappropriate in that par ticular case. F

indings that rebu

t these guidelines must state

the amount that would have been required under the guidelines andinclude a just

ific ation for deviatio

n from the guidel

ines which takes in

to consideration the best interest of the child. Tenn. Comp. R. & Reg

s. Ch. 1240-2-4-.0

2(7); see id

. When a trial court exercises its discretionto deviate from the Child Support Guidelines, we review its decision according to the “abuse of discretion” standard of review. Tallent v. Kates , 45 S.W.3d 556, 560 (Tenn. Ct. A pp. 2000); State ex. r el. Vaughn v. Kaatrude , 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). A discretionary decision will be set aside only whe n the t rial court misconstrued or misappl ied the controlling l egal principles or acted contrary to the substantial weig ht o f the evidenc e. White v. Vanderb ilt University , 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999). Theref ore, an appellate court will review a trial court’s discretionary decision to deter mine: “(1) whether the factual basi

s for the decision is supported by the evidence, (2) whether the trial court identified and applied the a pplicable lega

l principles, and (

3) whether the tr

ial court’ s decision is within the range of acceptable alternatives.” Id. at 223; see also Kaatrude , 21 S.W.3d at 248. In the present case, the tr ial court m ade the foll owing writt en finding:-8-

[T]he application of the guide lin es would be unjust or inappropriate during the approximately

12-year period

of time prior to the enactment of the guidelines in light of the testimony of the petitioner regarding her monthly ex pendi tures and the expenditures regarding the child. That if strict application of the Ch ild Support Guidelines were a pplied from birth of the child until October of 1989, it would be unjust based o n the facts of this case. If the Court took the average income of the defend an tand applied it to guidelines established in 1989 based upon the proof at trial of wages reported to the Internal Revenue Service during the years 1983, 1987, 1988 and 1989 then the defendant’s income was $164,564per year. Thus for the 145 months of this period of

time the child support would have been $2,879.87 pe r month or $417,581.15 prior to the enactment of the Child Support Guidelines. After hearing the proof and revie

wing the facts o

f the petitioner’ s actual expenses f rom 1977 until 1989, the Cou rt finds that such retroa ctive child suppor

t would constitute un

just enrichment of the petitioner.
After the court determined that the application of the Child Support Gui delines woul d be improper in calculating the pre-1989 arrearage, the court proceeded to illustrate how it arrived at the amount of arrearage from

the time of the child’s birth until the enactment of the guidelines. Based on Ms. Berryhill’s proo f at trial regarding her expenses and the expenses of the child, the court determinedthat Ms. Berryhill’s average monthly expenses were $1,932 per month from 1977 until 1983. The court then divided this amount by three, as Ms. Berryhill was providing for an additional minor child during that

time period. The c

ourt took this fig

ure, $644.00, and multiplied it by 72 months. The resulting product represe nted Ms. Berry

hill’s expenses in

raising Dr. Rhodes’s child. The court took this product, $46,368, and subtracted the amount Dr. Rhodes contributed during that time period, which was $21,000. The total arrearage, as determined by the court, was $25,368.00. The court co mputed the arrearage from 1983 until 1989 s imilarly, exc

ept it did not account for an additional minor

child during that

period. Ms. Berr

yhill was only

caring for Dr. Rhodes’s child at that time. The arrearage for the time period from 1983 until 1989 was $62,352. Accordingly, the total, pre-guideline arrearage came to $87,720.
After carefully reviewing

the record and the facts before us, we cannot say that the trial court abusedits discretion b y de viating from the presumptive amount of child support due under the guidelines from 1977 t o 1989. The court made a written and specific fi nding t ha t the guidelines woul d be inappr opriate in this case. The court illustrated the amount that Dr. Rhodes would owe under the guidelines. Fur

ther, t he court determi

ned the expenses th

at Ms. Berry

hill incurred in raising the child during the years at issu e. Based on these figures, the court determined that an application of

the guidelines w

ould “constitute unjust enrichment of [Ms. Berryhill].” The court’s decision to deviat e from t he guidelines was supported by the evidence, made pursuant to the applicable

legal principle

s, and was within the

range of acc

eptable alterna

tives. Further, the court’s decision was supported by a written finding as required by the supreme court’s decision in Berryhill and the Child Support Guidelines.7 “An award for retroa ctive child suppo rt is generally considered to have two p urposes: to benefit the parties’

child and t

o reimburse t

he custodial

parent for

contribut

ing more than [their] fai r share to the chi

ld’s support.” State
ex rel. Stewart v . Locke tt , No. M2001-00809-COA-R3-JV, 2002 Tenn. App. LEXIS 66, at *4, (Tenn. Ct. App. Jan. 30, 2002) ( no perm. app. filed ) (cit ing State ex r

el. Vaughn v. Kaatrude , 21 S.W .3d 244 , 248 (T enn. Ct. A pp. 200 0)).
8 The ch ild turned 18 in Sep tember , 1995.
9 Section 36-5-103(c) of

the Tennesse

e Code stat

es that “[t]he pl

aintif f spouse may recove

r from thedefendant spouse
. . . reasonabl

e attorne y fees inc

urred in enf

orcing any decr

ee for . . . child support . .

. in the discretion of s

uch (continu ed...) -9- Finall y, we note tha t the court did not have to consider the best interests of the child, as mandated by the Department of Human Services Rules and Regulations, when deviating from the guidelines in this case. Tenn. Comp. R. & Regs. Ch. 1240-2-4-.02(7). Under the particular facts of this case, the award of retroactive child support was to reimburse Ms. Berryhill, the custodial parent

, for contributing mor

e than her share

of the child’s supp

ort. 7 The best interest

s of the child, who i

s now an adult, 8 did not h ave to be considered by the trial court in making its written finding supporting its deviation from the guidelines. Accordingly, we hold that the trial court

did not err in deviating from the guidelines when it determined the child support arrearage f rom 1977 to 1989.
In Ms. Berryhill’s second issue, she maintains that the trial court erred in denying

her request for prejudgment inte

rest dating bac

k to the birth of her child. Prejudgment interest “may be awarded by courts or juries in

accordance w

ith the principles of e quity.” Tenn. Code Ann. § 47-14-123 (2001). An award

of prejudgment i

nterest is more likely i

n accord with the

principles of equ

ity if a “plaintiff’s rig

ht to recovery

and the amount of su

ch recovery

are not disput ed on reasonable grounds.” Alexander v. Inman , 9 7 4 S.W.2d 6 89, 698 (Ten n. 1998) (ci ting Myint v. Allstate Ins. Co. , 970 S.W.2d 920 (Tenn. 1998). The trial court is ves ted with a great deal of discretion when deciding whether to awar

d prejudgment int

erest. Id. This same standard and scope of review apply to parties who are seeking prejudgment interest on past child support obligations. See Silverstein v. Rice , No. W1999-01336-COA-R3-CV, 2000 Tenn. App. LEXIS 714, at *13 (Tenn. Ct. App. Oct. 20, 2000) perm. app. denied (Tenn. Apr. 9, 2001). Accordingly, we must again apply the deferential “abuse of discretion” standard of review. Alexander , 974 S.W.2d at 698.
Ms. Berryhill

argues that Dr. Rhodes’s child support obligations wer

e readily a

scertainable andequity demands that she should be compensated for the loss of funds throughout the “child’s entire minority.” We respectfully disagree. I t is clear from the significant appellate history of this case that Dr. Rhode’s ob

ligation was far

from certain. Ad

ditionally, a

t the original trial o f this matter, Dr. Rhodes was within reason to dispute Ms. Ber

ryhill’s cla

ims. The trial court di

d not abuse its discretion by denying Ms. Be rryhill’s request for prejudgment interest. Accordingly, we affirm the decision of the

trial court reg

arding prejudg

ment interest.
Fin all y, Ms. Berryhill requests that we award her the attorney’s fees and costs she incurr ed as a res ult of this appeal. The determinatio

n of whether to aw

ard attorney ’s fees for an a ppeal is within our discretion. 9 In light of ou r disposition of this a

ppeal, we deny

Ms. Berry

hill’s request.9 (...continued)

court.” T enn. Co de Ann . § 36-5-1 03(c)(2 000). -10- The judgment of the tr

ial court is rever

sed in part, affirmed in part, and remanded for further proceedings consistent with this opinion. Costs of this appeal are taxedto the appellee, M s. Betty Berryhill, for which execution may issue if ne cessary.

___________________________________ DAVID R. FARMER, JUDGE