IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 28, 2017 Session

ROY D. COX v. CAROLYN ELLEN COX

Appeal from the Chancery Court for Sullivan County

No. C0017446C E. G. Moody, Chancellor

___________________________________

No. E2016-01097-COA-R3-CV

___________________________________

This appeal arises from a combined judgment of divorce and an award of damages in tort. 

After awarding the husband a divorce, the court classified, valued, and divided the 

marital property. The court also granted the husband a judgment for compensatory and 

punitive damages arising from an intentional tort committed by the wife. The wife raises 

numerous issues on appeal, including the classification of marital property, the equitable 

division of the marital estate, and the amount of the damages award. Because the court’s 

order lacks sufficient findings of fact and conclusions of law to explain its division of the 

marital estate or the amount of punitive damages awarded, we vacate those portions of 

the court’s judgment and remand for entry of an order in compliance with Rule 52.01 of 

the Tennessee Rules of Civil Procedure. In all other respects, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in 

Part; Affirmed in Part; and Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

R. Wayne Culbertson, Kingsport, Tennessee, for the appellant, Carolyn Ellen Cox.

David W. Blankenship, Kingsport, Tennessee, for the appellee, Roy D. Cox.

OPINION

I.

After eleven years of marriage, Roy D. Cox (“Husband”) filed a complaint in the 

Chancery Court for Sullivan County, Tennessee, for an absolute divorce from Carolyn E. 

12/20/2017
2

Cox (“Wife”). This was the second marriage for both parties, and no minor children 

were involved. Wife filed both an answer and a counterclaim for divorce. 

Nine months later, Husband filed an amended complaint, which included his 

original allegations but also added a claim for damages in tort. Husband claimed that 

Wife had attacked him with a knife, causing injuries. In her answer, Wife admitted that 

she stabbed Husband but denied that he was injured or entitled to damages. 

A. PROOF AT THE HEARING

On May 13, 2015, the court held a combined hearing on both the divorce and 

Husband’s tort claim. Wife stipulated that Husband was entitled to a divorce and did not 

request alimony. She also stipulated to the assault. 

1. Proof Relevant to the Divorce Complaint

After cohabitating for ten years, Husband and Wife married in 1999 and separated 

in 2010. At the time of the hearing, Husband was 65 years old, and Wife was 51. The

couple had accumulated a modest amount of assets during the marriage. 

Husband owned Roy’s Body Works, an automobile collision repair shop. He had

no employees and performed all of the repair work himself. Wife testified that, after she 

moved in with Husband, she also worked in the shop albeit without pay. Wife’s role was 

mainly limited to paperwork and tax returns, but at times, she also made repair estimates. 

The parties agreed that their vehicles and other personal property were separate 

property. They also agreed to an even division of the proceeds from the sale of a camper. 

But they disputed the classification and valuation of their remaining assets,

1

including 

real property located in Sullivan and Hawkins Counties in Tennessee. 

Before the marriage, Husband relocated his business to property he had purchased

in Sullivan County. He later acquired the neighboring property and built the home where 

the parties lived. After the parties married, Husband added Wife’s name to the title to 

both tracts of the Sullivan County property. 

Also during the marriage, Wife and her sister each inherited a half-interest in real 

property in Hawkins County. Although the Hawkins County property is titled in Wife’s 

 

1 A major source of controversy at trial was the amount and source of cash kept in a safe in the 

marital residence. After hearing all the testimony, the court determined that the parties had not provided 

sufficient proof to value or award the safe contents in the division of the marital estate. Neither party 

disputes this finding on appeal. 
3

name alone, the parties used marital funds to purchase the sister’s interest and to make 

improvements on the property. 

Another area of disagreement at trial was the classification of five accounts at 

Eastman Credit Union. Wife testified that the accounts were jointly owned. Husband 

maintained that the accounts were his separate property. But, on cross-examination,

Husband admitted that the credit union accounts were owned by “Roy or Carolyn.”

Two accounts were used solely for Husband’s business,2and one checking 

account contained only Husband’s social security benefits. The remaining two accounts, 

a primary share account and an investment certificate of deposit, were pledged as 

collateral for two loans made to Husband. The reasons for Husband’s borrowing were 

not entirely clear from the record. 

According to the testimony, in 2009, a branch manager of Eastman Credit Union 

convinced Husband that he could earn money by investing in or loaning money to a 

company called Thomcrete Construction, Inc. To obtain the necessary funds, Husband 

borrowed from the credit union. Specifically, on July 20, 2010, shortly before filing for 

divorce, Husband borrowed approximately $43,000, secured by the funds in the primary 

share account. And on September 9, 2010, he borrowed another approximately 

$107,000, secured by the certificate of deposit. 

Whether it was an investment or loan, Husband’s plan did not yield the anticipated 

gains. Thomcrete Construction failed to make any payments to Husband, and at the time 

of the hearing, the outstanding balance on Husband’s loans was $134,408.04. To prevent 

the credit union from exercising its rights in the pledged accounts, Husband was making 

payments on the loans, but only an amount sufficient to cover accrued interest. 

Husband admitted that he pledged the credit union accounts without consulting 

Wife. As of the hearing date, his attempts to restructure his loans with the credit union or 

to recover from Thomcrete Construction had proven unsuccessful. Husband agreed that,

if he ever recouped any of his losses, he would share half of the recovery with Wife. 

At trial, Wife also asked the court to hold Husband accountable for failing to 

maintain her health and automobile insurance during the divorce proceedings in violation 

of the statutory injunction.

3 Husband agreed that he stopped payment after Wife stabbed 

him but disputed the amount of Wife’s claimed expenses. 

 

2 At the hearing, Wife waived any claim to Husband’s business accounts. 

3 By statute, “[u]pon the filing of a petition for divorce . . . and upon personal services of the 

complaint and summons,” a temporary injunction takes effect that, among other things, enjoins the parties 

from “allowing to lapse for nonpayment of premiums, any insurance policy,” including health and 

automobile policies. Tenn. Code Ann. § 36-4-106(d) (2017).
4

For health insurance, Wife claimed that she paid both a $1,209.12 reinstatement 

fee and $7,949.61 in monthly premiums. She admitted, however, that after the 

separation, all her expenses, including the health insurance premiums and the 

reinstatement fee, were paid from her father’s funds. Wife maintained that her father 

expected to be repaid. When asked for documentation of her father’s payments, Wife 

could only show that he paid approximately $2,087 for the reinstatement fee and monthly 

premiums. 

Similarly, Wife claimed that she paid $2,300 in automobile insurance premiums, 

but later admitted her father actually paid her premiums. And Wife only presented 

documentary evidence of two payments, totaling $1,146.

2. Proof Relevant to the Tort Claim

In March 2011, Wife entered the marital residence and stabbed Husband twice in 

the neck. She escaped while Husband was calling for assistance, but she was later 

arrested and convicted of simple assault. Paramedics treated Husband’s injuries on site

because he refused to go to a hospital. 

Since that time, Husband had suffered from a recurring infection that had limited

his ability to work. The symptoms first appeared several days after the stabbing. He did 

not feel well, and his wound turned red and puffy. His doctor determined that he had a 

bacterial infection and prescribed antibiotics. After a few doctor visits, the infection 

apparently cleared. But, according to Husband, the infection reappeared several times

over the ensuing months. Husband claimed that he was taking antibiotics to treat the 

infection at the time of trial. But he did not submit any medical bills or medical 

testimony as evidence at trial. 

Husband testified that, as a result of his injuries, he missed one month of work and 

lost approximately $20,000 in income. But on cross-examination he admitted that he had 

never reported $20,000 in business income in previous years. He also agreed that the lost 

income figure was an estimate based on anticipated walk-in business. Husband 

eventually conceded that he did not really know how much income he had lost when the 

business was closed. Husband did claim that, since the stabbing incident, his health had 

caused him to reduce his work hours. 

B. THE COURT RULING

On May 29, 2015, the court issued an initial ruling. The court awarded Husband a 

divorce on the grounds of inappropriate marital conduct and dismissed Wife’s 

counterclaim with prejudice. The court classified the couple’s personal vehicles and 

property as separate property, including any associated debt. The court also permanently 
5

restrained Wife from “coming about [Husband] at any place, including, but not limited to 

his place of business.” The court reserved ruling on all other matters.

The court allowed Husband to submit his medical bills and the most recent credit 

union statement after the hearing. Husband submitted an invoice from Trinity Family 

Practice showing an amount due of $932.58 and an itemized list of payments to the 

medical provider for services rendered between March 15, 2011, and May 18, 2015. 

Husband’s payments totaled $3,024.56. 

Husband also submitted his most recent credit union account statement. As of 

April 30, 2015, Husband’s business accounts contained approximately $13,000, and the 

checking account in which his social security benefits were deposited totaled $35,500. 

The two pledged accounts showed a combined balance of $156,649.43. 

On September 17, 2015, the court issued a final order disposing of the pending 

matters. The court determined that Wife had no claim to Husband’s business. The court 

also ordered Wife to reimburse Husband for the cost of storing her personal belongings.4 

Husband was ordered to reimburse Wife for the reinstatement fee she incurred after he 

wrongfully terminated her health insurance policy.

The court then valued and divided the remaining marital property. The court 

specifically noted that the parties had commingled and transmuted their separate assets 

into marital assets. The court determined that both the Hawkins County property and the 

Sullivan County property were marital assets and valued them at $93,500 and $150,000, 

respectively. Husband was awarded half the proceeds from the sale of the camper and 

the Sullivan County property while Wife received the other half of the camper proceeds

and the Hawkins County property. The court ruled that, if Husband ever recovered on his 

action against Thomcrete Construction, the money received would be divided equally 

between Husband and Wife. 

The court also found Wife liable on Husband’s tort claim and awarded Husband 

$15,000 in compensatory damages and $10,000 in punitive damages.

II.

Wife challenges both the court’s division of the marital estate and the award of 

compensatory and punitive damages for Husband’s tort claim. In a nonjury case, our 

review of the trial court’s factual findings is de novo upon the record, accompanied by a 

presumption of the correctness of the findings, unless the preponderance of the evidence 

 

4 Husband paid $132 per month to store Wife’s personal property in a pod outside the marital 

residence during the divorce proceedings. 
6

is otherwise. See Tenn. R. App. P. 13(d). Our review of questions of law is de novo, 

with no presumption of correctness. Armbrister v. Armbrister, 414 S.W.3d 685, 692 

(Tenn. 2013).

A. THE MARITAL ESTATE

1. Classification of Hawkins County Property

Before we address Wife’s challenge to the trial court’s division of the marital 

estate, we must consider her subsidiary argument that the court erroneously classified the 

Hawkins County property as marital property. “Dividing a marital estate necessarily 

begins with the systematic identification of all of the parties’ property interests.” Owens 

v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct. App. 2007). Once identified, the court is to 

“classify each of these property interests as either separate or marital property.” Id. 

“‘Separate property’ is not part of the marital estate and is therefore not subject to 

division.” Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009).

All property acquired by either spouse during the marriage is presumed to be 

marital property. Tenn. Code Ann. § 36-4-121(b)(1)(A) (2017); Fox v. Fox, No. M2004-

02616-COA-R3-CV, 2006 WL 2535407, at *4 (Tenn. Ct. App. Sept. 1, 2006). Wife, as 

the party seeking to rebut this presumption, has the “burden of proving by a 

preponderance of the evidence that the asset is separate property.” Fox, 2006 WL

2535407, at *4.

Wife contends, and we agree, that “[p]roperty acquired by a spouse at any time by 

gift, bequest, devise or descent” is separate property. Tenn. Code Ann. § 36-4-

121(b)(2)(D). But separate property may be converted into marital property by 

commingling or transmutation. Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 

2002). Our supreme court has explained how the doctrines of commingling and 

transmutation work:

[S]eparate property becomes marital property [by commingling] if 

inextricably mingled with marital property or with the separate property of 

the other spouse. If the separate property continues to be segregated or can 

be traced into its product, commingling does not occur. . . . .

[Transmutation] occurs when separate property is treated in such a way as 

to give evidence of an intention that it become marital property. . . . . The 

rationale underlying these doctrines is that dealing with property in these 

ways creates a rebuttable presumption of a gift to the marital estate. This 

presumption is based also upon the provision in many marital property 

statutes that property acquired during the marriage is presumed to be 

marital. The presumption can be rebutted by evidence of circumstances or 
7

communications clearly indicating an intent that the property remain 

separate.

Id. (alteration in original) (quoting 2 Homer H. Clark, The Law of Domestic Relations in 

the United States § 16.2 at 185 (2d ed. 1987)).

The trial court found that the parties had transmuted the Hawkins County property 

into marital property, and the evidence does not preponderate against that finding. 

Marital funds were used to purchase an additional half-interest in the property and to 

make improvements on the property. The fact that the Hawkins County property was 

titled in Wife’s name alone is not determinative. See Cohen v. Cohen, 937 S.W.2d 823, 

833 n.12 (Tenn. 1996). “An asset separately owned by one spouse will be classified as 

marital property if the parties themselves treated it as marital property.” Fox, 2006 WL 

2535407, at *5. 

2. Division of Marital Property

Next, we consider Wife’s contention that the court’s division of the marital estate 

was inequitable because the division unfairly favored Husband. She argues that the court 

failed to consider the parties’ relative economic circumstances or to address her 

dissipation argument.5 She also contends that she should have been awarded a portion of 

the pledged credit union accounts and the full amount of her claimed health and 

automobile insurance premiums. 

Trial courts have broad discretion in dividing the marital estate, and their division 

is entitled to great weight on appeal. Altman v. Altman, 181 S.W.3d 676, 683 (Tenn. Ct. 

App. 2005). “An abuse of discretion occurs when the trial court causes an injustice by 

applying an incorrect legal standard, reaches an illogical result, resolves the case on a 

clearly erroneous assessment of the evidence, or relies on reasoning that causes an 

injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). “Thus, we will 

ordinarily defer to the trial court’s division of the parties’ marital estate unless it is 

inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a 

preponderance of the evidence.” Altman, 181 S.W.3d at 683. 

Even though the division of a marital estate is left to the trial court’s discretion, the 

decision must be guided by a careful consideration of the relevant statutory factors.

6

 

 

5 Wife argued that Husband’s investment in Thomcrete Construction constituted dissipation of 

marital assets.

6 The statutory factors include:

(1) The duration of the marriage;
8

Tenn. Code Ann. § 36-4-121(c); Larsen-Ball v. Ball, 301 S.W.3d 228, 234-35 (Tenn. 

2010). Here, other than the trial court’s announced intention to “equalize” the division,

the court provided little or no explanation for its division. The court failed to identify the 

relevant statutory factors or explain how those factors impacted its decision. 

We have repeatedly emphasized the importance of providing findings of fact and 

conclusions of law in accordance with Rule 52.01 of the Tennessee Rules of Civil 

Procedure. See, e.g., Burnett v. Burnett, No. M2014-00833-COA-R3-CV, 2015 WL 

5157489, at *4-5 (Tenn. Ct. App. Aug. 31, 2015). The requirement of detailed findings 

of fact and conclusions of law is “not a mere technicality.” In re K.H., No. W2008-

01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 15, 2009) (discussing 

a similar requirement found in Tennessee Code Annotated § 36-1-113(k)). Absent these 

findings, we are “left to wonder on what basis the court reached its ultimate decision.”

 

(2) The age, physical and mental health, vocational skills, employability, earning 

capacity, estate, financial liabilities and financial needs of each of the parties;

(3) The tangible or intangible contribution by one (1) party to the education, training or

increased earning power of the other party;

(4) The relative ability of each party for future acquisitions of capital assets and income;

(5)(A) The contribution of each party to the acquisition, preservation, appreciation, 

depreciation or dissipation of the marital or separate property, including the contribution 

of a party to the marriage as homemaker, wage earner or parent, with the contribution of 

a party as homemaker or wage earner to be given the same weight if each party has 

fulfilled its role;

(B) For purposes of this subdivision (c)(5), dissipation of assets means wasteful 

expenditures which reduce the marital property available for equitable distributions and 

which are made for a purpose contrary to the marriage either before or after a complaint 

for divorce or legal separation has been filed.

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the division of property is to 

become effective;

(9) The tax consequences to each party, costs associated with the reasonably foreseeable 

sale of the asset, and other reasonably foreseeable expenses associated with the asset;

(10) The amount of social security benefits available to each spouse; and

(11) Such other factors as are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-4-121(c) (Supp. 2016) (effective July 1, 2015 to June 30, 2017) (amended 2017).
9

Id. “Simply stating the trial court’s decision, without more, does not fulfill this 

mandate.” Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 

(Tenn. Ct. App. Oct. 24, 2012).

When confronted with insufficient findings of fact, an appellate court is not 

without alternatives. One alternative is to vacate the decision and remand so that the trial 

court can make specific findings of fact and conclusions of law. Lovlace v. Copley, 418 

S.W.3d 1, 36 (Tenn. 2013). Another alternative is to conduct a de novo review of the 

record to determine where the preponderance of the evidence lies. Id. The appropriate 

alternative depends on the particular circumstances of the case, including the adequacy of 

the record, the fact-intensive nature of the case, and whether witness credibility

determinations must be made. See id. (declining to conduct a de novo review because 

credibility determinations were necessary to resolve factual disputes); Town of Middleton

v. City of Bolivar, No. W2011-01592-COA-R3-CV, 2012 WL 2865960, *26 (Tenn. Ct. 

App. July 13, 2012) (stating that independent review is appropriate when the case 

involves a legal issue or the court’s decision is “readily ascertainable”).

We conclude that the better alternative in this case is to vacate and remand for the 

trial court to make appropriate findings of fact and conclusions of law. The equitable 

division of marital property is a fact-intensive inquiry involving the careful weighing of 

the relevant statutory factors. The basis for the court’s decision is not readily 

ascertainable from the record, and we cannot determine whether the court applied the 

proper legal standard. The issues raised on appeal involve credibility determinations and 

a careful balancing of the equities between the parties, not clear legal issues. See 

Brainerd v. Brainerd, No. M2015-00362-COA-R3-CV, 2016 WL 6996365, at *5 (Tenn. 

Ct. App. Nov. 30, 2016) (vacating and remanding for findings of fact and conclusions of 

law supporting the division of marital estate); Kirby v. Kirby, No. M2015-01408-COAR3-CV, 2016 WL 4045035, at *5-6 (Tenn. Ct. App. July 25, 2016) (vacating and 

remanding case when lower court “did not specify which of the factual findings it applied 

in making its determination regarding marital property distribution”); Turman v. Turman, 

No. W2014-01297-COA-R3-CV, 2015 WL 1744278, at *4-7 (Tenn. Ct. App. Apr. 14, 

2015) (concluding that to vacate and remand was “the appropriate course of action” in 

appeal of equitable division of marital estate); Babcock v. Babcock, No. E2014-01670-

COA-R3-CV, 2015 WL 1059003, at *6 (Tenn. Ct. App. Mar. 9, 2015) (choosing to 

vacate and remand when the “issues concerning the portion of the marital estate awarded 

to Wife [did] not involve a clear legal issue,” and the basis for the court’s decision was 

not readily ascertainable).
10

B. DAMAGES IN TORT

Finally, we consider Wife’s claim that the court awarded Husband an excessive 

amount of compensatory and punitive damages.

7

 The trial court awarded Husband 

$15,000 in compensatory damages and $10,000 in punitive damages and ruled that the 

damages award was separate from the division of the marital estate.

8

 

1. Compensatory Damages

In a nonjury case, we will affirm a damages award “unless ‘the trial court has 

adopted the wrong measure of damages or . . . the evidence preponderates against the 

amount of damages awarded.’” Wilson v. Monroe Cty., 411 S.W.3d 431, 443 (Tenn. Ct. 

App. 2013) (quoting Moody v. Lea, 83 S.W.3d 745, 751 (Tenn. Ct. App. 2001)). “There 

is no mathematical formula for calculating damages in a personal injury action; rather, 

the award of damages is left to the discretion of the trier of fact upon consideration of the 

particular facts of the case.” Id. Proof of the amount of damages must be sufficiently 

certain to allow the fact finder to make a “fair and reasonable assessment.” Overstreet v. 

Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999). “[U]ncertain or speculative 

damages are prohibited only when the existence, not the amount, of damages is 

uncertain.” Id.

 

7 Wife also argues that medical proof was necessary to establish that the stabbing was the causein-fact of Husband’s claimed injuries. We agree that “plaintiffs must always establish causation, i.e., ‘that 

the injuries or condition for which the medical treatment was sought was caused by the conduct of the 

defendant.’” Dedmon v. Steelman, __ S.W.3d __, No. W2015-01462-SC-R11-CV, 2017 WL 5505409, at 

*6 (Tenn. Nov. 17, 2017) (quoting Iloube v. Cain, 397 S.W.3d 597, 603 (Tenn. Ct. App. 2012)). Here the 

only proof of causation is Husband’s testimony. While ordinarily expert medical testimony is necessary 

to establish causation, lay testimony is competent in simple and routine cases, such as this one. See 

Varner v. Perryman, 969 S.W.2d 410, 412 (Tenn. Ct. App. 1997) (affirming verdict based on lay 

testimony that accident caused stomach bruising); see also Pellicano v. Metro. Gov’t of Nashville & 

Davidson Cty., No. M2003-00292-COA-R3-CV, 2004 WL 343951, at *9 (Tenn. Ct. App. Feb. 23, 2004)

(discussing difference between simple injuries and those that require expert medical testimony); Am. Enka 

Corp. v. Sutton, 391 S.W.2d 643, 648 (Tenn. 1965) (“Lay testimony is competent to establish such simple 

but important matters as existence of pain, its location, inability to work, etc., but it may not be received 

and relied on to prove matters requiring scientific knowledge.”).

8 We find Wife’s argument that the common law right to setoff entitled her to a reduction in the 

amount of damages awarded on Husband’s tort claim unpersuasive. The right to setoff arises when two 

parties have mutual debts. “The fundamental philosophy of all setoffs and recoupments is that a party 

being sued for money may claim entitlement to money from the party bringing the suit, permitting the 

adjudication of countervailing claims in one suit.” Conister Tr. Ltd. v. Boating Corp. of Am., No. M1998-

00949-COA-R3-CV, 2002 WL 389864, at *18 (Tenn. Ct. App. Mar. 14, 2002). Setoff cannot be asserted 

as a defense in an action for unliquidated damages. Mack v. Hugger Bros. Constr. Co., 283 S.W. 448, 

449 (Tenn. 1926). The two debts must be of the same nature. Conister Tr. Ltd., 2002 WL 389864, at 

*19. The common law right to setoff is not applicable here. 
11

Wife contends that Husband submitted insufficient proof of medical expenses. 

“An injured plaintiff bears the burden of proving that medical expenses the plaintiff is 

seeking to recover are necessary and reasonable.” Borner v. Autry, 284 S.W.3d 216, 218 

(Tenn. 2009). “In all but the most obvious and routine cases, plaintiffs must present 

competent expert testimony to meet this burden of proof.” Id. “A physician who is 

familiar with the extent and nature of the medical treatment a party has received may give 

an opinion concerning the necessity of another physician’s services and the 

reasonableness of the charges.” Dedmon v. Steelman, __ S.W.3d __, No. W2015-01462-

SC-R11-CV, 2017 WL 5505409, at *4 (Tenn. Nov. 17, 2017) (quoting Long v. Mattingly, 

797 S.W.2d 889, 893 (Tenn. Ct. App. 1990)); see also Garner v. Maxwell, 360 S.W.2d 

64, 68-69 (Tenn. Ct. App. 1961) (concluding that nonmedical hospital employee was 

competent to testify as to the reasonableness of hospital charges).

In the absence of expert testimony, injured plaintiffs whose medical bills total

$4000 or less may avail themselves of the rebuttable presumption provided by Tennessee 

Code Annotated § 24-5-113(a). See Borner, 284 S.W.3d at 218 (explaining that the 

statute aids plaintiffs “for whom the expense of deposing an expert may exceed the value 

of the medical services for which recovery is sought”). Attaching a copy of itemized 

medical bills to the complaint creates prima facie evidence that the bills were reasonable 

and necessary. Tenn. Code Ann. § 24-5-113(a)(1) (2017). And by serving a copy of 

itemized medical bills on the defendant at least ninety days prior to trial, an injured 

plaintiff enjoys a rebuttable presumption that the medical bills are reasonable.9 Id. § 24-

5-113(b)(1). 

Husband did not present any expert medical testimony at trial and did not take 

advantage of the rebuttable presumptions in Tennessee Code Annotated § 24-5-113. 

Instead, after the trial had concluded, he filed with the court a copy of an invoice and a 

list of payments. We conclude that his proof of medical expenses was insufficient. See 

Fye v. Kennedy, 991 S.W.2d 754, 764 (Tenn. Ct. App. 1998) (“A plaintiff must prove 

that the services rendered were ‘necessary’ to treat the injury or condition in question; 

and, even if the services were necessary, that the charges in question were 

‘reasonable.’”).

Even so, Husband testified that, as a result of the stabbing, he “laid on the couch 

for a month, sick.” His sickness required him to close his business for multiple days and 

shorten his work hours. Husband was unable to quantify the amount of his lost income, 

but he was adamant that his recurring infection negatively impacted his health and his 

ability to work. Although Husband may have only provided scant proof of damages, we 

cannot say that the evidence preponderates against the court’s award of compensatory 

damages. See Carey v. Johnson, No. M2002-00911-COA-R3-CV, 2003 WL 21439039, 

 

9 The rebuttable presumption in Tennessee Code Annotated § 24-5-113(b) is available for 

medical bills of any size. Dedmon, 2017 WL 5505409, at *5.
12

at *2 (Tenn. Ct. App. June 23, 2003) (concluding that the court’s award of compensatory 

damages was reasonable based on the “modest” evidence presented).

2. Punitive Damages

Our supreme court’s decision in Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901-

02 (Tenn. 1992), governs “both the conditions under which a defendant c[an] be held 

liable for punitive damages and the factors that . . . determine the amount of punitive 

damages available.” Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 540 n.8 (Tenn. 

2008). A court may award punitive damages only upon finding clear and convincing 

evidence that “a defendant has acted either (1) intentionally, (2) fraudulently, (3) 

maliciously, or (4) recklessly.” Hodges, 833 S.W.2d at 901. If the trial court determines 

that the defendant is liable for punitive damages, it must then determine the amount of 

punitive damages to award in light of the factors outlined by our supreme court. 

Memphis Light, Gas & Water Div. v. Starkey, 244 S.W.3d 344, 355 (Tenn. Ct. App. 

2007). 

Here, it is undisputed that Wife acted with the requisite intent to justify an award 

of punitive damages. Thus, our focus is on whether substantial evidence supports the 

amount of punitive damages awarded. Unfortunately, we are unable to effectively review 

the court’s award in the absence of findings of fact and conclusions of law on the relevant 

Hodges factors.

Trial courts must consider these factors in determining the amount of punitive 

damages:

(1) The defendant’s financial affairs, financial condition, and net worth;

(2) The nature and reprehensibility of defendant’s wrongdoing, for example

(A) The impact of defendant’s conduct on the plaintiff, or

(B) The relationship of defendant to plaintiff;

(3) The defendant’s awareness of the amount of harm being caused and 

defendant’s motivation in causing the harm;

(4) The duration of defendant’s misconduct and whether defendant 

attempted to conceal the conduct;

(5) The expense plaintiff has borne in the attempt to recover the losses;

(6) Whether defendant profited from the activity, and if defendant did 

profit, whether the punitive award should be in excess of the profit in order 

to deter similar future behavior;

(7) Whether, and the extent to which, defendant has been subjected to 

previous punitive damage awards based upon the same wrongful act;

(8) Whether, once the misconduct became known to defendant, defendant 

took remedial action or attempted to make amends by offering a prompt 

and fair settlement for actual harm caused; and
13

(9) Any other circumstances shown by the evidence that bear on 

determining the proper amount of the punitive award.

Hodges, 833 S.W.2d at 901-02. And the court’s order must clearly demonstrate how 

each factor impacted the court’s decision. Culbreath v. First Tenn. Bank Nat’l Ass’n, 44 

S.W.3d 518, 529 (Tenn. 2001).

Findings of fact on each relevant Hodges factor are essential to effective appellate 

review. Id. at 528. Because the court’s order failed to address any of the Hodges factors, 

we vacate the award of punitive damages and remand this case for a reassessment of 

punitive damages in light of the Hodges factors. See Culbreath, 44 S.W.3d at 529

(reversing and remanding case for reassessment of punitive damages award because the 

court’s findings of fact “did not address each of the Hodges factors individually”); 

Whalen v. Bourgeois, No. E2013-01703-COA-R3-CV, 2014 WL 2949500, at *17-18

(Tenn. Ct. App. June 27, 2014) (vacating and remanding case for reassessment in light of 

Hodges factors). 

III.

Because the trial court failed to provide sufficient findings of fact and conclusions 

of law to explain its division of the marital estate, we vacate those portions of the court’s 

decision and remand for entry of an order in compliance with Rule 52.01 of the 

Tennessee Rules of Civil Procedure. On remand, the court should equitably divide the 

marital property, as previously valued by the court, in light of the appropriate statutory 

factors. For the same reason, we vacate the court’s punitive damages award on 

Husband’s tort claim and remand for entry of an appropriate order after a reassessment of 

the amount of punitive damages in light of the Hodges factors. In all other respects, the 

decision of the trial court is affirmed.

_________________________________

W. NEAL MCBRAYER, JUDGE