source: Caselaw Access Project

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text:
    James Kent PYLANT v. Karen Cardin SPIVEY.
    No. M2002-00602-COA-R3-CV.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Feb. 13, 2003 Session.
    Dec. 31, 2003.
    Permission to Appeal Denied by Supreme Court June 1, 2004.

      W. Charles Doerflinger, Lawrenceburg, Tennessee, for the appellant, James Kent Pylant.
    Joe W. Henry, Jr., Pulaski, Tennessee, for the appellee, Karen Cardin Pylant (Spi-vey).
   OPINION

PATRICIA J. COTTRELL, J.,

delivered the opinion of the court,

in which BEN H. CANTRELL, P.J., M.S., and MARIETTA SHIPLEY, SP. J., joined.

This appeal involves a dispute over the extent of a father’s obligation, under a provision in a property settlement agreement, to pay for his daughter’s college education. The daughter chose to attend an expensive private college. The trial court found that father should pay tuition equivalent to the cost of an out-of-state public university. Both parties appealed. We affirm the trial court’s decision that the father is obligated to pay reasonable costs, but vacate the judgment because there is insufficient proof of such costs.

James Kent Pylant and Karen Cardin Pylant (now Spivey) were divorced on September 8,1982 at a time when their daughter, Kacey Pylant, was four months old. As part of the court’s order, Ms. Spivey was awarded custody of the minor child, with Mr. Pylant having reasonable visitation privileges and a child support obligation. The final order of divorce acknowledged that the parties had entered into a property settlement agreement that adjudicated their property rights and custody of their daughter “in complete fullness and fairness” and that the agreement was “voluntarily and knowingly entered into by both parties.”

The order at Paragraph 11 provided: “That the plaintiff (Mr. Pylant) shall be responsible for the college education of the minor child even above and beyond the age of 18 years old at the college of the minor child’s choice.” This paragraph reflected a provision in the handwritten (by Ms. Spi-vey) agreement that stated, “Education— college of Kacey’s choice — Kent’s responsibility.”

In the intervening years, the parties resorted to the courts over child support and visitation issues on several occasions, the last time resulting in an order entered in August of 2000 finding Mr. Pylant in arrears in his child support in the amount of $4,325.22.

The proceeding which is the subject of this appeal was begun by the filing by Ms. Spivey of a complaint for Declaratory Judgment in October of 2000 in which she asked the court to declare the rights and obligations of the parties under the college education provision of the divorce decree and settlement agreement. The complaint alleged that the parties’ child, Kacey, had elected to attend Vanderbilt University, had started school there, had been invoiced for $15,575, and that Mr. Pylant, despite demands, had refused to pay these expenses.

No evidence was taken at the trial; instead, the matter was submitted on the depositions of the parties and their daughter. From those depositions, we glean the following facts.

I.

The economic circumstances of the parties since 1982 are in marked contrast. Karen Spivey has prospered in large measure because of her one-third interest in her family’s business, Cardin Distributing Company. She draws $80,000 per year in dividend income from the corporation and owns some investment property. Her current husband also works in the family business, drawing a salary of $150,000 per year.

At the time of the divorce, Kent Pylant was employed at his then wife’s family business, Cardin Distributing, earning $70,000. Since the divorce, his salary reached that level again only once and only for a brief time. Over the last eighteen years, Mr. Pylant has been employed by fourteen different employers earning annual incomes varying from $10,000 per year to $70,000 per year. In 1992, Mr. Pylant invested $50,000 in a business in an attempt to increase his earnings, but the business failed and he lost his investment which had come from his 401K plan and a joint savings account. At the time of the hearing in this case he was employed by Ad-Tech Solutions earning a salary of $50,000 per year. His current wife earns $41,000 per year at Cypress Communications, and they own a home valued at $152,500, which is heavily mortgaged. They also have a son who was age three at the time of the trial.

Kacey excelled in school and became a very talented vocalist. Her interest in music culminated in her decision to study opera in college. She began discussing her college choices with her father during her freshman or sophomore year in high school. She attained an ACT score of 32 and was accepted by many colleges including Middle Tennessee State University, where she won a full academic scholarship. When Kacey informed her father of her choice of the Blair School of Music of Vanderbilt University, a private institution, he protested that he could not afford to send her to Vanderbilt where the costs exceed $35,000 annually. Mr. Pylant wrote Kacey in May of 2000 informing her of a “list of possible [college] choices” he would fund. In July, 2000, Mr. Pylant reminded Kacey of his choices for her and stated in a follow-up letter that “I am working to have the funds available and ready for your registration and wanted to see if you had made a final decision.”

Kacey testified that her father had told her for some time, at least from her junior year, that he could not afford Vanderbilt or schools of similar cost. She stated that his statements had an impact on how she looked at colleges, but she chose Vanderbilt for other reasons and that financial factors were not the most important factor to her. She believed the cost of Vanderbilt to be about $30,000 per year and stated she had no idea how much money her father earned. When told he made around $50,000 per year and asked if $30,000 tuition on that salary sounded reasonable, she stated, “I guess it doesn’t sound reasonable when you say it that way, but I also think that there are probably ways of paying for it ”

During her college search and application process, Kacey’s mother told her that she, the mother, could afford Vanderbilt. Kacey stated that her mother had told her that if Vanderbilt was the place for her then she should go there. Kacey guessed that her mother was" actually paying for Vanderbilt. Ms. Spivey testified that she was aware of Kacey’s discussions with her father and her father’s statements that he could not afford Vanderbilt. Regarding her actions and advice to Kacey during the college selection process, Ms. Spivey testified as follows:

Question: Did you have a discussion with Kacey about attending Vanderbilt University and how that would be paid for?
Answer: I tried not to talk to her a whole lot about the financial part of it. I felt like that was between myself and her father.
Question: Did you have any discussions with Kent about Vanderbilt University before she applied to Vanderbilt?
Answer: No, because I knew she was talking with her father.
Question: And you heard her testify that every time she talked to her father about Vanderbilt that he told her he could not afford Vanderbilt.
Answer: Correct.
Question: And is that what she reported back to you?
Answer: Yes.
Question: And what, if any, discussions did you have with Kacey in light of that response from her father?
Answer: I told her that we had an agreement in our divorce that she was to attend the college of her choice and that I wanted her to pick, based on that, where she wanted to go.
Question Did you ever — In light of those reports back from Kacey did you ever either call or write or contact Kent to discuss the financial aspects of her attending Vanderbilt University? Answer: I don’t think so.
Question: When Kacey came to you and told you that her father said he could not afford Vanderbilt University what, if any, response did you have to Ka-cey?
Answer: My response was probably that we would go to court....

Over her father’s objections, but with the financial support of her mother and stepfather, Kacey enrolled at Vanderbilt University. Mr. Pylant refused to pay any of her college expenses at Vanderbilt. Subsequently, Ms. Spivey filed this declaratory judgment action.

At trial, Ms. Spivey took the position that the obligation of Mr. Pylant under the property settlement agreement was clear and unambiguously compelled Mr. Pylant to pay the college expenses at any college chosen by Kacey. Mr. Pylant agreed that he was obligated under the agreement to pay the college expenses of Kacey but stated that such expenses should be limited to those of a state institution or similarly low cost institution in keeping with his ability to pay. Mr. Pylant insisted that he should have had input into Kacey’s choice of college and that her selection of Vanderbilt would bankrupt him.

After setting forth the evidence presented, the trial court found:

Mr. Pylant’s position is basically that at the time he entered into the property settlement agreement, he did not intend for Kacey to be able to attend any college she chose regardless of cost and that he currently does not have the ability to pay for the cost of an education at the University of Vanderbilt. Mrs. Spi-vey argues that Mr. Pylant contracted to pay for his daughter’s education at the college of her choice, that he knew that he was financially responsible for that education and that he did nothing to prepare for that expense.
Mr. Pylant does not present a very sympathetic figure to the Court. Even though he knew he was financially responsible for college, he has given his daughter only Twenty Dollars ($20.00) while she has been at Vanderbilt. He apparently had problems paying his child support as ordered. In nineteen (19) years, he has saved nothing to help him pay for his daughter’s education. Both Mrs. Spivey and Mr. Pylant attended a private college, Rhodes, and it was foreseeable that their daughter might choose to attend a private college or university. Mr. Pylant’s hands are unclean. It is also clear to the Court that Kacey would have more than likely been unable to attend Vanderbilt University if it had not been for the financial ability of her mother. Without that financial ability, Kacey would have been forced to attend a college that her father could more easily afford, or to depend on a combination of what he could afford and financial aid. This statement is not meant to criticize either Kacey or Mrs. Spivey for her choice of Vanderbilt University as the appropriate and best place for Kacey to obtain her education. To the contrary it is simply an observation based on financial information available to the Court.
In Exhibit B to the Petition filed by Mrs. Spivey, Mr. Pylant makes it clear that he is willing to pay for certain universities. The Court finds that a typical state university, including room, board and tuition, would run in the neighborhood of Ten Thousand Dollars ($10,000). An out of state university could cost double that amount. The Court hereby requires Mr. Pylant to pay Twenty-Thousand Dollars ($20,000) per year towards the cost of his daughter’s education at Vanderbilt University. The expense shall continue so long as Kacey matriculates towards a degree as a full time student and shall be retroactive from her freshman year.

Neither party was satisfied with the trial court’s compromise solution, and both parties appealed. Mr. Pylant argues that the trial court did not set his tuition obligation low enough. In contrast, Ms. Spivey insists that the trial court erred in modifying downward Mr. Pylant’s obligation to only $20,000 per year.

II.

Interpretation of contracts is a question of law. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999). Therefore, the trial court’s interpretation of the agreement herein is not entitled to a presumption of correctness on appeal. Id; Angus v. Western Heritage Ins. Co., 48 S.W.3d 728, 730 (Tenn.Ct.App.2000). This court must review the document ourselves and make our own determination regarding its meaning and legal import. Hillsboro Plaza Enters, v. Moon, 860 S.W.2d 45, 47 (Tenn.Ct.App.1993). Regarding factual findings, our review is also de novo upon the record of the trial court, but with a presumption of correctness. Tenn. R.App. P. 13(d); Cross v. City of Memphis, 20 S.W.3d 642, 643 (Tenn.2000).

A property settlement or marital dissolution agreement is essentially a contract between a husband and wife in contemplation of divorce proceedings. Towner v. Towner, 858 S.W.2d 888, 890 (Tenn.1993); Gray v. Estate of Gray, 993 S.W.2d 59, 63 (Tenn.Ct.App.1998). Such an agreement is enforceable, Holt v. Holt, 995 S.W.2d 68, 72 (Tenn.1999), and “is to be construed as other contracts as respects its interpretation, its meaning and effect.” Bruce v. Bruce, 801 S.W.2d 102 (Tenn.Ct.App.1990) (quoting Matthews v. Matthews, 24 TennApp. 580, 593,148 S.W.2d 3,11-12 (1940)).

While a parent generally has no legal duty to support a child past the child’s majority, Blackburn v. Blackburn, 526 S.W.2d 463, 465 (Tenn.1975), a parent may contractually extend his or her support obligation beyond that imposed by law. Penland v. Penland, 521 S.W.2d 222, 224 (Tenn.1975); Hawkins v. Hawkins, 797 S.W.2d 897, 898 (Tenn.Ct.App.1990). Payment of college expenses is an appropriate subject for an agreement between a husband and wife going through a divorce. Penland, 521 S.W.2d at 224; Hathaway v. Hathaway, 98 S.W.3d 675, 678 (Tenn.Ct. App.2002). Such an agreement is binding on the parties and constitutes “a contractual obligation outside the scope of the legal duty of support during minority and retains its contractual nature .... ” Penland, at 224; Hathaway, at 678. As with propei"ty settlement agreements generally, one that includes a provision on college expenses is subject to the same rules of contract interpretation as any other contract. Hathaway, 98 S.W.3d at 678.

In the case before us, Mr. Pylant does not dispute that he undertook the contractual obligation to be financially responsible for his daughter’s college expenses. It is the extent or scope of that obligation that is in dispute. Mr. Pylant believed that he would share in the decision making as to Kacey’s choice of college and that his ability to pay would be a limiting factor on her choice if he was to be expected to be solely financially responsible. He testified that he thought the words “college of her choice” meant a school that she chose that was acceptable to both him and his daughter. He asserts that his obligation under the agreement must be interpreted by using a reasonableness standard and that it is not reasonable to expect a person who earns $50,000 per year to pay $35,000 in college expenses annually.

“The central tenet of contract construction is that the intent of the contracting parties at the time of executing the agreement should govern.” Planters Gin Co. v. Fed. Compress & Warehouse Co., Inc., 78 S.W.3d 885, 890 (Tenn.2002). The purpose of interpreting a written contract is to ascertain and give effect to the contracting parties’ intentions, and where the parties have reduced their agreement to writing, their intentions are reflected in the contract itself. Id.; Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 85 (Tenn.1999). Therefore, the court’s role in resolving disputes regarding the interpretation of a contract is to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the language used. Guiliano, 995 S.W.2d at 95; Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth Inc., 521 S.W.2d 578, 580 (Tenn.1975).

Where the language of the contract is clear and unambiguous, its literal meaning controls the outcome of contract disputes; but, where a contractual provision is ambiguous, i.e., susceptible to more than one reasonable interpretation, the parties’ intent cannot be determined by a literal interpretation of the language. Planters Gin Co., 78 S.W.3d at 890. In that situation, courts must resort to other rules of construction, and only if ambiguity remains after application of the pertinent rules does the legal meaning of the contract become a question of fact. Id.

Thus, courts defer to the contracting process by enforcing written contracts, which establish the rights and obligations of the parties, according to their plain terms without favoring either contracting party. Cocke County Bd. of Highway Comm’rs v. Newport Utils. Bd., 690 S.W.2d 231, 237 (Tenn.1985); Hardeman County Bank v. Stallings, 917 S.W.2d 695, 699 (Tenn.Ct.App.1995). Courts must avoid rewriting an agreement under the guise of interpreting it. Marshall v. Jackson & Jones Oils, Inc., 20 S.W.3d 678, 682 (Tenn.Ct.App.1999). The courts will not make a new contract for parties who have spoken for themselves, Petty v. Sloan, 197 Tenn. 630, 640, 277 S.W.2d 355, 359 (1955), and will not relieve parties of their contractual obligations simply because these obligations later prove to be'burdensome or unwise. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 223 (Tenn.Ct.App. 2002).

The foregoing authority indicates that where the parties have unambiguously set out the terms of their agreement, courts will enforce those terms as written, regardless of any inequity arising from that enforcement. On the other hand, courts may incorporate a reasonableness requirement into any contract. Moore v. Moore, 603 S.W.2d 736 (Tenn.Ct.App.1980). In Moore, this court was called upon to interpret a provision in a real estate sales contract that made the contract contingent upon the buyer’s “ability to obtain adequate financing.” The proof showed that although the buyer was unable to secure financing in Shelbyville, where the property was located, he was able to obtain adequate financing in Nashville. In this factual context, the court stated that, “a qualifying word which may be read into every contract is the word ‘reasonable,’ or its equivalent ‘reasonably.’ ” Id. at 739. Consequently, the court interpreted the contingency as meaning “reasonable ability to obtain sufficient financing by ordinary, recognized means.” Id. The court then found that the contract was subject to reasonable application of the words used therein “according to the known situation of the parties,” but was not ambiguous. Id.

The Moore court’s language that reasonableness may be read into every contract has been quoted, cited, and applied in a number of cases decided by this court. See, e.g., Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d 887, 892 (Tenn. Ct.App.1995) (holding that insurance company’s demand for production of financial records and assertion that insured’s failure to produce was a breach of the cooperation clause of the insurance contract could be considered unreasonable). In fact, in some instances, we have stated that the qualifying word “reasonable” must be read into every contract. Minor v. Minor, 863 S.W.2d 51, 54 (Tenn.Ct.App.1993). In Minor, because the- contract did not include a time for performance, a reasonable time was implied, based upon Moore and upon the well-settled rule that missing contract terms may be implied. Id. In McClain v. Kimbrough Constr. Co., 806 S.W.2d 194, 198 (Tenn.Ct.App.1991), this court held that “the extent of contractual obligations should be tempered by a ‘reasonableness’ standard,” citing Moore.

This court has had the opportunity to apply these rules of contract interpretation in the context of an agreement to provide college expenses in a number of cases. While some of them have involved determinations of specific portions of the agreement language not here present, more than a few have specifically addressed the reasonableness of the expenses. For example, in Cagle v. Cagle, No. 02A01-9710-CH-00265, 1998 WL 802019 (Tenn.Ct.App. Nov.18,1998) (no Tenn. R.App. P. 11 application filed), the father argued, among other things, that his agreement to pay for his son’s “college expenses” should be interpreted to require him to pay only the reasonable costs of that education and also that the term “college” as used in the agreement should be interpreted as meaning “public college.” With regard to the second issue, this court held: the agreement itself did not limit college to apply only to public colleges; the father could have limited the term “college” in the agreement but did not; the father failed to prove a mutual understanding at the time of the agreement that the term would be limited to public colleges; and the ordinary meaning of the term “college” included private as well as public colleges.

With regard to the father’s reasonableness argument, the court recognized that his contractual obligation was subject to “an implied condition of reasonableness,” citing Moore. Id,., at *3. The father had paid expenses for the son to attend a public university the year before, and testified that the costs at the private school the son transferred to would be essentially the same if he did not provide extras he had provided earlier, such as a car. Additionally, this court found that the evidence did not preponderate against the trial eourt’s finding that the cost at the private school in question was “a reasonable cost of obtaining an education.” Id., at *4. Consequently, this court found that the private college was a reasonable choice within the terms of the agreement. Id.

Our review of decisions regarding agreements to pay for college reveals that this court has consistently held that such an obligation is subject to an implied condition of reasonableness, at least where no specific college or amount of expenses is set forth. In Hathaway, the court stated that “reasonable” must be read into the contract contrary to the trial court’s finding that the father’s failure to place a limitation in the agreement required him to pay all tuition “no matter how much or how difficult.” 98 S.W.3d at 679. The court also discussed with approval prior decisions holding that “just because the agreement contained no limitation on the defendant’s obligation, that did not mean the child ‘could attend any college, regardless of the cost.’ ” Id., 98 S.W.3d at 680, quoting In re Marriage of Schmidt, 292 Ill.App.3d 229, 226 Ill.Dee. 152, 684 N.E.2d 1355,1362 (1997).

In Wilson v. Wilson, No. 03A01-9610-CH-00322, 1997 WL 360670 (Tenn.Ct.App. June 30, 1997) (no Tenn. R.App. P. 11 application filed), this court agreed that the marital dissolution agreement language requiring the father to pay “expenses of a college education” was subject to an implied condition of reasonableness, Id., at *1, but determined that it need not examine the reasonableness of the expenses at issue because the father had in fact provided the items included in those expenses. Similarly, in Cooper v. Cooper, No. W1999-01450-COA-R3-CV, 2001 WL 29459 (Tenn.Ct.App. Jan.10, 2001) (no Tenn. R.App. P. 11 application filed), the court noted that the father’s obligation to pay for his son’s college was subject to an implied condition of reasonableness and that the analysis in such cases had been extended to determining whether the choice of college is reasonable. Id., at *5. Because that issue was not raised in Cooper, however, the court found that reasonableness of the choice of college was not relevant therein. Id.

The most thorough discussion of the relevance and application of a reasonableness standard to a parent’s agreement to pay college expenses of his or her child is found in Vick v. Vick, No. 02A01-9802-CH-00051, 1999 WL 398115 (Tenn.Ct.App. June 16, 1999) (no Tenn. R.App. P. 11 application filed). In that case, the marital dissolution agreement provided that the father agreed to be “responsible for the children’s tuition, room and board for college education if they choose to go for a four year degree.” The provision itself did not limit those expenses to a reasonableness standard. This court examined cases from this state and from other jurisdictions and noted that some courts have refused to limit a parent’s obligation where there are no limitations stated in the agreement. Id., at *4. However, the court found more persuasive those cases holding that the obligation.was subject to a determination of the reasonableness of the choice of school and held:

The majority of courts considering this issue, however, will determine if the choiee of college is reasonable, considering the child’s needs and the parent’s ability to pay. This is the approach used by the trial court in this case and is consistent with the contract’s implied condition of reasonableness. Therefore, we adopt this approach on appeal.

Id., at *7 (citations omitted).

The Vick court found especially persuasive the reasoning of In re Marriage of Schmidt, 292 Ill.App.3d 229, 226 Ill.Dec. 152, 684 N.E.2d 1355. In the In re Schmidt case, the court had found that where a contract was silent as to price, a reasonable price was to be implied. Id. at 1361. The Illinois appellate court determined that the cost of the private school chosen by the daughter was unreasonable in light of the father’s financial means. The father was ordered to pay one-half (the agreement was for one-half of college expenses) of the educational expenses at a state school. Id. at 1364. The In re Schmidt court also found there was no evidence that at the time they entered into the agreement the parties intended that their daughter could attend any college, regardless of cost. Id. at 1362.

Although the agreement in Vick was silent as to who would make the decision of which college the child would attend, we think the reasoning is applicable to the case before us with the result that Kacey’s choice of college is subject to a reasonableness standard as far as Mr. Pylant’s obligation to pay for it is concerned. This interpretation is consistent with other cases implying a condition of reasonableness in similar contracts.

It is also consistent with those cases holding that where a term is missing from a contract, a reasonable one will be implied. Minor, 863 S.W.2d at 54 and cases cited therein; McClain, 806 S.W.2d at 198 (where parties omit material provisions from their contract, the courts will impose obligations on the parties “that are reasonably necessary for the orderly performance of the contract.”); see also Floyd v. Floyd, No. M2000-02344-COA-R3-CV, 2001 WL 997380, at *5 (Tenn.Ct.App. Aug.31, 2001) (no Tenn. R.App. P. 11 application fried) (holding that where an MDA failed to establish a specific visitation schedule, the implied reasonable standard would be applied). Here, the term missing from the college education provision is essentially a price or cost term, so a reasonable price must be implied. The fact that an agreement does not set a specific amount or otherwise identify a measurable limit does not mean that the obligation is unlimited or that the child can unilaterally obligate the parent to pay an unreasonable amount.

Further, in construing contracts, courts must look at the language and the parties’ intent and impose a construction that is fair and reasonable. ACG, Inc. v. Southeast Elevator, Inc. 912 S.W.2d 163 (Tenn.Ct.App.1995). In Wallace v. National Bank of Commerce, 938 S.W.2d 684 (Tenn.1997), the Tennessee Supreme Court, in examining the duty of good faith in performance that is implied in every contract, discussed with apparent approval a Court of Appeals holding that “a court must judge the performance against the intent of the parties as determined by a reasonable and fair construction of the language of the instrument.” 938 S.W.2d at 686. While the case before us does not involve an allegation of failure to perform, it does ask the court to define the scope or extent of performance required. We think the Supreme Court’s holdings in Wallace are relevant to that definition and are consistent with the principle that reasonableness will be implied in a contract, at least where a material term is missing.

Herein, the parties did not specify the cost of the education or describe it in any quantifiable or measurable way. We will not presume that the parties intended an unlimited obligation. Instead, we presume they intended to establish a reasonable obligation that the father would fore-seeably be able to meet. We can imagine scenarios in which courts would not hesitate to refuse to enforce such an apparently open-ended obligation because a child’s choice of a particular school was blatantly unreasonable, either because of the cost of the school or because of the financial situation of the obligor parent. For example, if a child chose to go to a unique and exclusive institution, located for example in Europe, whose cost was prohibitive to all but the most wealthy, we have no doubt that courts would refuse to require a parent of average means to fund that choice. In that situation, the concept of reasonableness would be applied; it is only a matter of degree to also apply it in the situation before us.

For all the reasons stated above, we conclude that Mr. Pylant’s contractual obligation to pay for his daughter’s college education at a school of her choice is subject to a determination of whether that choice is reasonable in the circumstances.

III.

Whether the term “reasonable” is written into the contract by the parties or is implied into it by the courts, “reasonable” does not mean unlimited. Hathaway, 98 S.W.3d at 679, citing Moscheo v. Moscheo, 838 S.W.2d 226, 228 (Tenn.Ct. App.1992). The answer to the question of what is reasonable will vary according to the circumstances. Moscheo, 838 S.W.2d at 227.

In Moscheo, the father agreed to pay a reasonable college tuition. The child in that case had enrolled in a private out of state college, and the father agreed to pay the tuition if the daughter did reasonably well. He paid for $7000 for one semester, and the student transferred to Belmont College where she could live at home and work part time. The father paid $2690 tuition for one semester with a condition that the student maintain a “C” average and work part time. When the daughter then advised her father that she wanted to attend another private college out of state, the father agreed to pay up to a limit of $6,000. He paid that and -more for the first semester, but refused to pay for the next semester. The trial court found that the father was only required to pay a reasonable amount each year and that he had paid the amount required.

Based upon evidence that the tuition in state colleges for the relevant school year was between $1,000 and $2,000 per year and tuition at private schools was much higher, this court found that $6,000 was a reasonable amount of tuition under the circumstances of the case, because “It is in the middle range between the cost of tuition at a good state-supported university and a moderately priced private institution.” Id. at 228. The court did not directly address the father’s financial ability to pay, and we must assume it was not raised as an issue.

The general rule, however, is that the obligor parent’s ability to pay is an important consideration in determining the reasonableness of the choice of college for which that parent is expected to pay. In Hathaway, this court held that the trial court erred in holding that the father’s income and ability to pay were not to be considered and further erred in limiting the father’s proof to that of impossibility. 98,S.W.3d at 681.

In determining whether a child’s choice of college is reasonable, both the child’s needs and the parent’s ability to pay must be considered. Id. at 680; Vick, 1999 WL 398115, at *7. Even where, as in the case before us, the chosen college is an excellent fit for the child, the ability of the parent to pay must also be considered. Hathaway, 98 S.W.3d at 681. What is reasonable may vary according to the financial situation of the parties involved. “[A] tuition amount need not be outrageous in order to be unreasonable. If parents cannot pay what one may consider a modest tuition, that amount is still unreasonable as to them.” Id. at 680, quoting Carlton v. Carlton, 670 So.2d 1129, 1130 (Fla.Ct.App.1996).

Reasonableness must be viewed in light of the parties’ situation at the time of the making of the agreement as well as at the time it becomes due. Hathaway, 98 S.W.3d at 680-81; see also Vick, 1999 WL 398115, at ⅜ 8 (considering the cost of the college selected and the father’s annual income at that time). When a court is called upon to supply a missing term with a reasonable one, it must consider the subject matter of the contract, the situation of the parties, their intention in what they contemplated at the time the contract was made, and the circumstances attending the performance. Minor, 863 S.W.2d at 54.

From the transcript of the hearing, it is clear that the trial court understood that it would have to determine reasonableness and would also have to determine whether the father’s ability to pay was a factor that must be considered. Although the final order does not clearly state the findings in those terms, it appears to us that the trial court did consider reasonableness and determined that the cost of an out of state public school was reasonable. Whether the father’s ability to pay played a part in that determination is not clear.

The parties’ testimony regarding then-understanding or expectation at the time the agreement was signed demonstrates that there was no agreement as to the extent of the obligation under the provision. In fact, Ms. Spivey testified that at the time of the divorce, there were no negotiations or discussions leading up to the handwritten provision that Kent would pay for Kacey’s college. While the trial court found that it was foreseeable at that time that their daughter might choose a private college, that does not really address the question of their reasonable expectations. The cost of a private education at the school attended by the parties would likely have been a smaller percentage of Mr. Pylant’s $70,000 per year salary than the costs at Vanderbilt today are of his current and recent salary. In addition, Mr. Pylant’s education was supplemented by partial scholarships. It was not unforeseeable that their child would also receive scholarships. In fact, her high school record and accomplishments qualified her for merit based scholarships at some schools, ranging from a full scholarship at a state school to a small grant at Vanderbilt.

Kacey’s eligibility for need based scholarships raises other questions. The trial court found that Kacey had applied for various financial aid, but because of her mother’s financial situation almost all were denied. The record includes no information on this issue other than Kacey’s testimony. It would have been useful to know what kind of or how much financial aid would have been available to Kacey based on Mr. Pylant’s financial situation, especially in view of Ms. Spivey’s position that Mr. Pylant should be responsible for paying the entire cost of Kacey’s education at Vanderbilt.

On appeal, Ms. Spivey vigorously argues that Mr. Pylant should have saved for the cost of Kacey’s education. While that is no doubt true, based on the evidence in the record we are not convinced that a person with Mr. Pylant’s income, which Ms. Spi-vey estimates to have averaged about $34,000 per year, could have saved enough to fund an education at the cost of the school chosen by Kacey. The record is devoid of any proof from which we could draw any conclusion on this question or adequately consider it in a reasonableness determination.

Mr. Pylant asserts he should only have to pay the equivalent of the cost of a state school. The trial court found that he had provided a list of schools he could fund. That list included Tennessee public colleges, where presumably Kacey would only have to pay instate tuition and fees, and some public colleges in other states, some in Georgia where Mr. Pylant lives. The record does not include any information on the costs of the schools on the list.

We agree with the trial court that the father’s providing a list to Kacey of the schools he could pay for removes any argument he might make regarding his inability to pay with regard to those schools. However, we are unable to conclude that the trial court’s holding that Mr. Pylant was obligated to pay the equivalent of an out of state public college tuition in the amount of $20,000 is supported by the record because there is simply no evidence regarding the costs of the schools on the list or the general cost of public colleges in state and out of state. See Hathaway, 98 S.W.3d at 681.

We find that Mr. Pylant is obligated to pay the reasonable cost of a college education for his daughter. While the daughter may choose to go to a school whose cost exceeds a reasonable cost, Mr. Pylant is obligated to contribute to her education that reasonable cost. We further find that, by his own admission, Mr. Pylant has the ability to pay the costs of the schools on the list he provided to his daughter, which the trial court referred to as Exhibit B. Thus, those costs are reasonable as to the parent’s ability to pay.

However, we have no basis upon which to conclude whether the cost of each or any of the schools on the list is reasonable or unreasonable as compared to college costs in general. Additionally, we have no basis for determining whether $20,000 represents the actual cost of any of those colleges. Consequently, we must vacate the judgment of the trial court. On remand, if the parties are unable to agree on the costs of the colleges on the list provided by Mr. Pylant to Kacey, the court should, after an evidentiary hearing, determine the actual costs of the colleges, the reasonableness of those costs, and the reasonable amount Mr. Pylant must pay based upon that information.

Costs of this appeal are taxed equally between the appellant, James Kent Pylant, and the appellee, Karen Cardin Pylant Spivey.

      . On appeal Mr. Pylant asserts that the trial court did not allow him to present evidence. The record of the hearing before the trial court does not support this assertion. During a colloquy between the court and counsel about the time required to put on proof and about the issues involved in construing the agreement, both attorneys offered to submit the case on the depositions taken during discovery. The court offered to hear proof, but the parties, through their attorneys, agreed to waive additional proof. The court explained the procedure to Mr. Pylant. The transcript makes clear that the procedure followed by the trial court was agreed to by both counsel and no request to take testimony was made.

      . Ms. Spivey estimates his average yearly salary to have been $33,700, although she cautions that figure is not presented as exact.

      . Kacey testified in her deposition that in addition to Vanderbilt, she looked at the Juil-liard School of Music, Florida State University, Westminster Choir College, Mannes School of Music, Manhattan School of Music, Oberlin Conservatory, Northwestern University, Middle Tennessee State University, University of Alabama, and University of Georgia. She was accepted at Vanderbilt, University of Kentucky, Florida State University, Middle Tennessee State University, and. Westminster Choir College.

      .The colleges listed were University of Tennessee at Knoxville, Middle Tennessee State University, University of Memphis, University of Tennessee at Chattanooga, University of Tennessee at Martin, Tennessee Tech, Austin Peay University, University of Alabama (both Huntsville & Tuscaloosa), Georgia State University (where she could live with her father and commute), and University of Georgia (Athens).

      . Kacey received a $3,000 vocal scholarship to Vanderbilt. In addition, her grandfather Cardin had set aside $12,000 in trust for Kacey’s college which was used to help pay her first year tuition.

      . The trial court permitted Mr. Pylant to file an affidavit stating that on November 19, 2001, Mr. Pylant paid $8,000 toward Kacey’s college tuition.

      . The agreement in Hathaway actually used the term "reasonable” in describing the tuition expenses to be paid. The court, nonetheless, stated that the Moore rule would apply even if the agreement did not limit the expenses to those that were reasonable.

      . In Vick, this court found the evidence indicated a significant difference in cost between the private college chosen by the child and a state-supported university, but also found there was no mutual understanding at the time of the agreement that the term "college” was limited to public colleges. 1999 WL 398115, at *7. The court also found that the MDA did not require approval by or consultation with the father on the choice of schools. Noting that some courts would end the inquiry at this point, the Vick court decided otherwise.

      . See also Ingrassia v. Ingrassia, 156 Ill. App.3d 483, 109 IlLDec. 68, 509 N.E.2d 729, 737 (1987) (holding term missing from settlement agreement's college education provision is essentially a price term, so reasonable price is implied).

      . The Supreme Court also acknowledged prior Court of Appeals holdings to the effect that good faith in performance is measured by the terms of the contract and the parties may, by those terms, establish the standards by which performance is to be measured. The Court determined that the parties in Wallace had agreed to specific terms and that performance according to those terms could not be characterized as bad faith. 938 S.W.2d at 687.

      . Kacey explained her choice of Vanderbilt. She was an excellent student with close ties to her voice teacher at the Blair School. While some of the other schools she considered may have had better ranked music departments, because Vanderbilt did not have a graduate music program, she knew she would not have to compete with graduate students for opera parts. In addition, the university was near both her home and her counselor.

      . The court in In re Schmidt recognized the unique situation divorced families face in dealing with post-majority college arrangements and considered how the college decision, would have been made had the parents remained married, stating, "The only way to determine a reasonable price would be to use the same factors two married parents would use.” In re Schmidt, 226 Ill.Dec. 152, 684 N.E.2d at 1362.

      . For example, proof from a financial aid officer or other qualified person regarding the amount of aid available to a student based upon Mr. Pylant’s income and resources would be instructive and a factor in considering reasonableness. By placing Kacey in the financial shoes of the obligor parent, a more realistic picture may have been developed.


author: HERSCHEL PICKENS FRANKS, P.J.,

text:
    Frankie Ann ROLEN, Individually and as Administratrix of the Estate of Jewell V. Ingram and Patsy Lou Young, Individually and as Administratrix of the Estate of Jewell V. Ingram v. WOOD PRESBYTERIAN HOME, INC.
    Court of Appeals of Tennessee, at Knoxville.
    Feb. 14, 2005 Session.
    May 9, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      Loren E. Plemmons, Lenoir City, Tennessee, and Donald Capparella, Nashville, Tennessee, for appellants.
    Linda J. Hamilton Mowles, Knoxville, Tennessee, for appellee.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

This action involves claims brought regarding the decedent Jewell Ingram against Wood Presbyterian Home, Inc., alleging that Ingram was injured while in defendant’s care, and also that her treatment by defendant ultimately contributed to her death. Plaintiff proposed a jury form which asks that the jury determine whether defendant was guilty of negligence which caused Ingram’s death, but also asked the jury to find whether defendant was guilty of negligence which caused injury to Ingram. The jury form submitted by the Trial Judge, however, asked whether defendant was at fault for the death of Ingram, and directed that if the answer to that question was no, the jury should return a verdict for defendant. The jury answered the question in the negative, and announced a defendant’s verdict. Plaintiff has appealed. We affirm the Trial Court’s Judgment for defendant as to the wrongful death claim, but remand for a new trial on the issue of damages for injuries sustained prior to decedent’s death.

In this action, these issues are raised on appeal:

1. Did plaintiffs waive any disagreement with the jury verdict form by failing to timely object?
2. Did the Trial Court err in failing to submit plaintiffs’ personal injury claim to the jury?

Defendant argues that plaintiffs waived any objections to the verdict form by failing to object on the record before the form was submitted to the jury. Plaintiffs respond that they did object, but no court reporter was present to record the objection. Plaintiffs did, however, raise the issue in their Motion for New Trial. This Court has previously stated:

Counsel should object promptly to a proposed verdict form. If possible, they should object to the form before its submission to the jury. However, if unaware of the form’s substance, they should object before the jury returns its verdict. Savina v. Wisconsin Gas Co., 36 Wis.2d 694, 154 N.W.2d 237, 240 (1967). Failure to make a timely objection to a verdict form constitutes a waiver of the objection. Frith v. Lambdin, 703 S.W.2d 890, 893 (Ky.Ct.App.1986); Estate of Hartz v. Nelson, 437 N.W.2d 749, 752 (Minn.Ct.App.1989); Reed v. Sale Memorial Hosp. & Clinic, 741 S.W.2d 819, 824 (Mo.Ct.App.1987); Goggins v. Harwood, 704 P.2d 1282, 1289 (Wyo.1985).

Keith v. Murfreesboro Livestock Market, 780 S.W.2d 751, 759 (Tenn.Ct.App.1989).

Plaintiffs claim they objected to the removal of the personal injury claims from the verdict form before the form was given to the jury, and this is demonstrated by the discussion between, plaintiffs’ counsel and the Trial Court in the transcript of the motion for new trial hearing. Moreover, plaintiffs raised this issue in their Motion for New Trial, and we have previously found that is sufficient to preserve the issue for an appeal. In Patterson ex rel. Patterson v. Dunn, 1999 WL 398083, (Tenn.Ct.App. June 16, 1999), the Court stated:

Finally, the Teague Defendants argue that it was error for the trial court to allow the jury to consider the fault of Williams and Haywood County. The Teague Defendants note that the liability of Williams and Haywood County would be governed by the Tennessee Governmental Tort Liability Act, under which the trial court is required to make a determination of their fault. The Plaintiff responds that the objection is waived because there was no objection at trial until the Teague Defendants’ motion for new trial. The Plaintiff also notes that the Teague Defendants’ own proposed jury verdict form listed Williams.
During the trial, when the trial court stated that it was including Williams on the jury verdict form, the Teague Defendants did not object. Indeed, counsel for the Teague Defendants requested that a charge in the jury instructions be applied to Williams: “We would like, likewise, following too closely and reckless driving on Billy Williams as well.” Moreover, the Teague Defendants’ proposed special jury verdict form lists Williams as one of the parties to whom the jury is to allocate fault. The first objection made by the Teague Defendants to the inclusion of Williams and Haywood County on the jury form was in their motion for a new trial filed after the jury verdict was entered. However, the Tennessee Rules of Civil Procedure provide that an objection to jury instructions is not waived where there is a failure to make objection until a motion for new trial. See TenmR.Civ.P. 51.02.

For the foregoing reasons, we conclude this issue was not waived by plaintiffs.

Next, defendant argues that the Court properly removed the personal injury claims from the jury verdict form because the evidence and arguments presented to the jury related only to the wrongful death claim. To support this, defendant cites the record from the Motion for New Trial hearing, wherein the Trial Court stated, “if I had felt that the law and the evidence required me to submit the personal injury due to the bruising to the jury as a separate matter and cause under the verdict form, I would have done so.” A review of the transcript, however, demonstrates that the Trial Court’s decision was based on the Court’s interpretation of the law as to whether the personal injury claims were subsumed into the wrongful death action.

The issue thus becomes whether the plaintiff could maintain a claim for personal injury due to negligence/malpractice and a separate claim for wrongful death based essentially upon the same injuries?

Plaintiffs proposed verdict form asked the jury to find whether defendant was guilty of negligence which was the cause of Ingram’s death, and if so, to assess damages. The form then asked the jury to find whether defendant was guilty of negligence which was the cause of injury to plaintiff, and if so, to assess damages for pain/suffering, impairment, loss of capacity for enjoyment of life, and medical care/services. The jury verdict form which the Trial Court submitted to the jury, however, only asked if the jury found defendant at fault for the death of Ingram, and instructed that if they answered that question in the negative, to return a verdict for the defendant, which the jury did.

Plaintiffs insist it was error for the Trial Court to withdraw the issue from the jury to award damages for injuries caused to Ingram by defendant’s negligence, even if the negligence did not ultimately cause her death.

Tenn. R. Civ. P. 8 is the general rule regarding pleadings, and states that a party may set forth two or more alternative claims, regardless of consistency. Tenn.Code Ann. § 20-5-102 deals with survival of actions, and states, in pertinent part: “No civil action commenced, whether founded on wrongs or contracts, ... shall abate by the death of either party, but may be revived”. Tenn.Code Ann. § 20-5-106 is the wrongful death statute, and states: “The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by the person’s death but shall pass to the person’s surviving spouse and, in case there is no surviving spouse, to the person’s children or next of kin”. Tenn.Code Ann. § 20-5-118 states that in wrongful death actions, the plaintiff can seek damages for “mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.”

The parties and the Trial Court concluded there was no Tennessee precedent controlling this case. There are decisions from other jurisdictions with similar statute and procedural rules which are instructive. See, King v. Cooper Green Hospital, 591 So.2d 464 (Ala.1991); Cahoon v. Cummings, 734 N.E.2d 535 (Ind.2000) (holding that both personal injury and unlawful death claims could be submitted to the jury)-

As stated, Tenn. R. Civ. P. 8, allows a plaintiff to plead alternative theories of recovery. Tennessee employs an election of remedies doctrine, whose sole purpose is to “prevent double redress for a single wrong.” Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901 (Tenn.1999). Thus, applying the reasoning utilized by the above cited cases, we conclude the Trial Court erred in not allowing both of plaintiffs’ claims to go to the jury, with the understanding that plaintiffs would not have double recovery for the same damages. To rule otherwise would give no force and effect to the plain language of Tenn. R. Civ. P. 8, as well as TenmCode Ann. § 20-5-102.

The damages for the decedent’s pain and suffering may be awarded in a wrongful death action. See Thrailkill v. Patterson, 879 S.W.2d 836 (Tenn.1994); Tenn.Code Ann. § 20-5-113. Thus, plaintiffs would not be able to recover this type of damages under their wrongful death claim and also under their personal injury claim. This would not require that plaintiffs’ personal injury claims be dismissed, however, as the jury could find the defendants injured the decedent but did not ultimately cause her death. But the way this case proceeded, the jury was not given that option, and the Trial Court effectively directed a verdict on plaintiffs’ personal injury claims by refusing to allow the jury to consider an award of damages for anything other than the wrongful death claim. If it developed that plaintiffs were required to elect between the two claims, it would not have been required until the damages were awarded. See Concrete Spaces. Moreover, the only reason plaintiffs would have to elect, would be if the jury awarded damages for the injuries and associated pain and suffering under both claims.

There is material evidence in the record from which the jury could have found that Wood Presbyterian Home was liable for negligence which caused injuries to the deceased, and that she endured pain and suffering from those injuries. But there is also material evidence that those injuries did not ultimately cause her death. Accordingly, we affirm the Judgment for defendants on the wrongful death claim, but remand to the Trial Court for a new trial on plaintiffs’ claim for damages for injuries and associated pain and suffering which occurred prior to her death.

The cause is remanded for further proceedings consistent with this Opinion, and the costs of the cause are assessed one half to plaintiffs and one-half to defendant.

      . For example, the Judge noted that he had not been able to locate any precedent where the personal injury action had been preserved procedurally, which he conceded was done in this case by plaintiffs, and he also conceded that the plaintiffs had presented evidence to the jury from which the jury could find injuries caused by defendants’ negligence.

      . There is, however, case law which suggests that a survival claim and a wrongful death claim could be brought in the same action, if the survival action was properly revived. Gipson v. Memphis Street Railway Co., 51 Tenn.App. 31, 364 S.W.2d 110 (1962).


author: CHARLES D. SUSANO, JR., J.,

text:
    Lee KETCHERSID v. RHEA COUNTY BOARD OF EDUCATION.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Feb. 15, 2005 Session.
    April 28, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, Lee Ketchersid.
    Robert G. Wheeler, Jr. and Deborah A.G. Smith, Nashville, Tennessee, for the appellee, Rhea County Board of Education.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and SHARON G. LEE, J., joined.

Lee Ketchersid, a tenured teacher in the Rhea County School System, appealed her dismissal to the Rhea County Board of Education (“the School Board”). Following a hearing, the School Board determined that the evidence supported the charges against Mrs. Ketchersid of insubordination, incompetence, and inefficiency under the Teachers’ Tenure Act, Tenn. Code Ann. § 49-5-501, et seq., and voted to terminate Mrs. Ketchersid as a tenured teacher. Mrs. Ketchersid appealed the School Board’s decision to the trial court, which, following a de novo review, held that her dismissal was supported by sufficient evidence. Mrs. Ketchersid appeals, arguing that the trial court erred in this determination. We affirm.

I.

During the 2000-2001 school year, Mrs. Ketchersid, who was certified to teach children in grades K-12, was a kindergarten teacher at Graysville Elementary School. Due to her failure to meet the requirements of an improvement plan at Grays-ville, Mrs. Ketchersid was transferred to Rhea Central Elementary School at the beginning of the 2001-2002 school year and placed in charge of a “Title I” classroom of seven third-grade students. These students were identified as being below their grade level and in need of remedial instruction; the students were not, however, placed in the classroom due to behavioral or discipline problems.

On October 11, 2001, one of Mrs. Ketch-ersid’s students came to assistant principal Buddy Jackson’s office in tears, explaining that Mrs. Ketchersid had “smacked her on the face.” Assistant Principal Jackson then met with the child and her parents, as well as Mrs. Ketchersid, in an attempt to determine what had happened. The following day, Jackson and Principal Doug Keylon met with Mrs. Ketchersid to discuss her treatment of students. At that time, both Jackson and Keylon stressed to Mrs. Ketchersid the importance of being positive with the children and told her that she was not, under any circumstances, to put her hands on the students.

In February, 2002, another student’s parents reported to Principal Keylon that Mrs. Ketchersid had slapped their child. Principal Keylon reported this allegation to Dr. Sue Porter, the Director of Rhea County Schools. On February 12, 2002, Director Porter and Assistant Director Dallas Smith, along with Principal Keylon and Assistant Principal Jackson, interviewed some of the students from Mrs. Ketchersid’s classroom on an individual basis. The students informed the administrators that Mrs. Ketchersid would place her hands on their faces when she became angry with them. One student told the group of administrators that Mrs. Ketcher-sid would often hit him over the head with a soft-cover textbook. More than one student referred to Mrs. Ketchersid having pinched their cheeks when she was angry.

Following these meetings with the students, the administrators brought Mrs. Ketchersid in for a private meeting. When questioned as to whether she had hit students over the head with a book, Mrs. Ketchersid replied that she had done so when she was angry, and she then proceeded to demonstrate by taking a legal pad and tapping Principal Keylon on the head. Mrs. Ketchersid also admitted to placing her hands on the faces of or slapping five out of her seven students. She stated that she did so when she was angry and when the children were being disrespectful. When asked when she had last placed her hands on a student’s face, Mrs. Ketchersid admitted that she had done so that very morning. At the conclusion of this meeting with Mrs. Ketchersid, Director Porter informed her that, in light of her “complete insubordination” for failing to follow the directives of Principal Keylon and Assistant Principal Jackson to refrain from placing her hands on the students, she was not to return to her classroom and that she was henceforth suspended without pay.

On March 14, 2002, Director Porter recommended to the School Board that Mrs. Ketchersid be dismissed as a tenured teacher from the Rhea County School System, based upon Mrs. Ketchersid’s alleged insubordination, incompetence, inefficiency, and neglect of duty. The School Board then recommended Mrs. Ketchersid’s dismissal.

Mrs. Ketchersid requested a hearing before the School Board in order to appeal its decision, which hearing was conducted on July 15, 2002. At the conclusion of the hearing, the School Board determined that the charges of insubordination, incompetence, and inefficiency were supported by the evidence, and the School Board, by a vote of 6 to 2, voted to terminate Mrs. Ketchersid from her tenured position with the Rhea County School System.

Mrs. Ketchersid appealed the School Board’s decision to the trial court. After reviewing the record, the trial court found that Mrs. Ketchersid received a fair hearing and that there was sufficient evidence to justify her dismissal. From this judgment, Mrs. Ketchersid appeals.

II.

In this non-jury case, our review is de novo upon the record of the proceedings below; but the record comes to us with a presumption of correctness that we must honor “unless the preponderance of the evidence is otherwise.” Tenn. R.App. P. 13(d). The trial court’s conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

III.

The issues in this case cause us to focus on the following statutory provisions:

Tenn.Code Ann. § 49-5-501 (2002)
As used in this part, unless the context otherwise requires:
(5) “Incompetence” means being incapable, lacking adequate power, capacity or ability to carry out the duties and responsibilities of the position. This may apply to physical, mental, educational, emotional or other personal conditions. It may include lack of training or experience; evident unfitness for service; physical, mental or emotional condition making teacher unfit to instruct or associate with children; or inability to command respect from subordinates or to secure cooperation of those with whom the teacher must work;
(6) “Inefficiency” means being below the standards of efficiency maintained by others currently employed by the board [of education] for similar work, or habitually tardy, inaccurate, or wanting in effective performance of duties;
(7) “Insubordination” may consist of:
(A) Refusal or continued failure to obey the school laws of Tennessee, or to comply with the rules and regulations of the board [of education], or to carry out specific assignments made by the board [of education], the director of schools or the principal, each acting within its own jurisdiction, when such rules, regulations and assignments are reasonable and not discriminatory;
Tenn.Code Ann. § 49-5-511 (2002)
(a)(1) No teacher shall be dismissed or suspended except as provided in this part.
(2) The causes for which a teacher may be dismissed are as follows: incompetence, inefficiency, neglect of duty, unprofessional conduct and insubordination as defined in § 49-5-501.
(3) A director of schools may suspend a teacher at any time that may seem necessary, pending investigation or final disposition of a case before the board [of education] or an appeal. If vindicated or reinstated, the teacher shall be paid the full salary for the period during which the teacher was suspended.
(4) When charges are made to the board of education against a teacher, charging the teacher with offenses which would justify dismissal of the teacher under the terms of this part, the charges shall be made in writing, specifically stating the offenses which are charged, and shall be signed by the party or parties making the charges.
(5) If, in the opinion of the board [of education], charges are of such nature as to warrant the dismissal of the teacher, the director of schools shall give the teacher a written notice of this decision, together with a copy of the charges, and a copy of a form which shall be provided by the commissioner of education advising the teacher as to the teacher’s legal duties, rights and recourse under the terms of this part.
Tenn.Code Ann. § 49-5-512 (2002)
(a) A teacher, having received notice of charges pursuant to § 49-5-511, may, within thirty (30) days after receipt of notice, demand a hearing before the board [of education], as follows:
(1) The teacher shall give written notice to the director of schools of the teacher’s request for a hearing;
(2) The director of schools shall, within five (5) days after receipt of request, indicate the place of such hearing and set a convenient date, which date shall not be later than thirty (30) days following receipt of notice demanding a hearing;
(3) The teacher may appear at the hearing and plead the teacher’s cause in person or by counsel;
(4) The teacher may present witnesses, and shall have full opportunity to present the teacher’s contentions and to support them with evidence and argument. The teacher shall be allowed a full, complete, and impartial hearing before the board [of education], including the right to have evidence deemed relevant by the teacher included in the record of the hearing, even if objected to by the person conducting the hearing;
(5) The chair of the board [of education] conducting the hearing is hereby empowered to issue subpoenas for witnesses to compel their attendance at hearings authorized under this section. All parties to the proceeding shall have the right to have subpoenas issued by the chair of the board [of education] to compel the attendance of all witnesses deemed by such parties to be necessary, for a full and complete hearing. All witnesses shall be entitled to the witness fees and mileage provided by law for legal witnesses, which fees and mileage shall be paid as a part of the costs of such proceeding. The costs of such proceeding shall be paid by the losing party;
(6) The chair of the board [of education] shall administer oaths to witnesses, who shall testify under oath;
(7) A record of the hearing, either by transcript, recording, or as is otherwise agreed by the parties, shall be prepared, if the action of the board [of education] is appealed, and all actions of the board [of education] shall be reduced to writing and included in the record, together with all evidence otherwise submitted;
(8) On request of either party to the trial, witnesses may be barred from the hearing except as they are called to testify. The hearing may be private at the request of the teacher or in the discretion of the board [of education]; and
(9) The board [of education] shall within ten (10) days decide what disposition to make of the case and shall immediately thereafter give the teacher written notice of its findings and decision.
(b) The director of schools or other school officials shall not be held liable, personally or officially, when performing their duties in prosecuting charges against any teacher or teachers under this part.
Tenn.Code Ann. § 4-9-5-513 (2002)
(a) A teacher under “permanent tenure” or “limited tenure” status who is dismissed or suspended by action of the board [of education] may petition for a writ of certiorari from the chancery court of the county where the teacher is employed.
(g) The cause shall stand for trial and shall be heard and determined at the earliest practical date, as one having precedence over other litigation, except suits involving state, county or municipal revenue. The review of the court shall be limited to the written record of the hearing before the board [of education] and any evidence or exhibits submitted at such hearing. Additional evidence or testimony shall not be admitted except as to establish arbitrary or capricious action or violation of statutory or constitutional rights by the board.
(h) The chancellor shall reduce the chancellor’s findings of fact and conclusions of law to writing and make them parts of the record.
(i) Any party dissatisfied with the decree of the court may appeal as provided by the Tennessee Rules of Appellate Procedure, where the cause shall be heard on the transcript of the record from the chancery court.

IV.

On appeal, Mrs. Ketchersid only asks us to decide whether the trial court erred in its determination that the School Board was justified in dismissing her as a tenured teacher.

The School Board found sufficient evidence to support the charges of insubordination, incompetence, and inefficiency, thereby justifying Mrs. Ketchersid’s termination. Insubordination, as defined in Tenn.Code Ann. § 49-5-501(7)(A), includes the “[r]efusal ... to carry out specific assignments made by ... the principal.” Both Principal Keylon and Assistant Principal Jackson testified before the School Board that they specifically instructed Mrs. Ketchersid, in October of 2001, to refrain from placing her hands on any of her students again. Mrs. Ketchersid testified that it was her understanding of their instructions that she was not to touch the student who made the October complaint, but that the directive did not extend to the other students in the class. However, she did admit that it made sense that they were instructing her not to touch any of the students. When Mrs. Ketchersid was questioned following the February, 2002, complaint, she admitted that she had continued to place her hands on the students’ faces, even as recently as that very morning.

There is no question that Mrs. Ketcher-sid refused to follow a specific directive from Principal Keylon. See TenmCode Ann. § 49-5-501(7)(A). We therefore agree with the trial court’s finding that “[Mrs.] Ketchersid’s refusal to refrain from striking students [is] an insubordinate act as defined by the statute.”

The definition of incompetence includes “evident unfitness for service” and possessing a “condition making teacher unfit to instruct or associate with children.” Tenn.Code Ann. § 49-5-501(5). Mrs. Ketchersid admitted in the hearing before the School Board that she would place her hands on the children’s faces in order to get them to pay attention to her:

OK the smacking [the children] are referring to is when I took hold of their face, to direct their attention to me, because they wouldn’t, they would misbehave and not look at me. They weren’t looking at me, they weren’t paying attention to the lesson, you know they weren’t paying attention, so I took their face to look directly at me and then I think a couple of times I did go pat, pat, pat, but they were like punctuation marks. I was telling the child, I was trying to make them understand that I mean business. That they had to obey me.

Director Porter testified that, when Mrs. Ketchersid was questioned by the administrators on February 12, 2002, she complained that her class of students was “just all bad” and she had “nothing but the bad” students. Director Porter explained to Mrs. Ketchersid that the children were placed in her classroom based on their being below grade level and not due to any discipline problems. Mrs. Ketchersid, however, continued to refer to the children as bad and disrespectful, telling Director Porter that she placed her hands on the children’s faces “when [she] gets angry and when [the children] are disrespectful.”

As Mrs. Ketchersid was certified to teach—and had taught—K-8 students for over ten years, it is shocking to this court that she felt it necessary to grab the faces of her third-grade students or hit them over their heads with a book in order to get them attention. Certainly, a teacher with that much experience should be capable of controlling her anger and handling her students in a more professional—and safe—manner. Without question, Mrs. Ketchersid’s tactics amount to “evident unfitness for service.”

There is also sufficient evidence, as found by the trial court, to support a finding of inefficiency, which is defined to include “wanting in effective performance of duties.” Tenn.Code Ann. § 49-5-501(6). Assistant Principal Jackson testified before the School Board that, when he had observed Mrs. Ketchersid’s classroom pri- or to her February 12, 2002, suspension, he was forced to call down a child who was misbehaving because Mrs. Ketchersid was doing nothing to control the situation. Jackson stated that he had never had to call down a child before while observing any other classroom. Mrs. Ketchersid even admitted at the hearing that she had failed to appropriately discipline her students and make them behave, in spite of her 24 years of teaching experience. Again, we agree with the trial court’s finding that “[Mrs.] Ketchersid’s need to resort to such physical tactics, as well as the inability to maintain an orderly classroom, constitutes sufficient evidence of inefficiency and incompetence.”

Furthermore, there is ample evidence that the School Board conducted a fair and impartial hearing, dismissing the charge of neglect of duty upon finding that the evidence did not support it. In addition, the School Board, as noted by the trial court, engaged in “extensive discussion and debate as to the appropriate disposition of the case.” In light of all of this evidence, we find no error in the trial court’s determination that the School Board was justified in dismissing Mrs. Ketchersid.

V.

While Mrs. Ketchersid presents only one issue on appeal, the School Board construes her argument as raising—or attempting to raise—two additional issues, to which the School Board has chosen to respond. First, the School Board asserts that Mrs. Ketchersid “makes a vague allegation that several provisions of the collective bargaining agreement between the [S]chool [B]oard and the teacher’s association were violated in this case.” Second, the School Board states that Mrs. Ketcher-sid “argues that she was ‘demoted from her job as Kindergarten Teacher at the Graysville Elementary School, prior to there being any charges made against her....’”

With respect to the first issue, our thorough review of the record reveals that at no time did Mrs. Ketchersid raise with the trial court the issue of violations of the collective bargaining agreement. It is well-settled that issues not raised at the trial court level may not be raised for the first time on appeal. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.1991). However, even if Mrs. Ketchersid had raised this issue below— and we do not believe that she did—she has failed to include a copy of the collective bargaining agreement in the record. Without that document, we are unable to address this purported issue in any event, as there is no proof in the record concerning it.

As to the second issue, there is nothing in the record to indicate that Mrs. Ketchersid ever raised the issue of her “demotion” before the trial court; as such, she is not permitted to raise it now. See Simpson, 810 S.W.2d at 153.

VI.

The judgment of the chancery court is affirmed. This case is remanded for the collection of costs assessed below, pursuant to applicable law. Costs on appeal are taxed to the appellant, Lee Ketchersid.


text:
    Leonard HARTMAN v. John T. Milburn ROGERS, Jerry W. Laughlin, William S. Nunnally and Rogers, Laughlin, Nunnally, Hood & Crum, P.C.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Feb. 16, 2005 Session.
    April 18, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 17, 2005.

      David B. Hamilton, Knoxville, Tennessee, for appellant.
    Thomas L. Kilday, Greenville, Tennessee, for appellees.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which D. MICHAEL SWINEY, J„ and SHARON G. LEE, J„ joined.

In this legal malpractice action against attorneys, the Trial Court granted all defendants summary judgment. On appeal, we affirm on grounds that the statute of limitations ran before the suit was filed.

Plaintiff has appealed from the summary judgment granted to the defendants in an action for legal malpractice stemming from plaintiffs divorce case.

As of the date of appeal to this Court, the defendants herein are the fourth, fifth, and sixth in a succession of nine attorneys employed by the plaintiff in connection with his divorce.

The Trial Court granted summary judgment to defendants on several grounds, including the statute of limitations, and we conclude that whether the statute had run is the determinative issue on appeal.

By way of background, the Trial Court filed its Memorandum on the plaintiffs divorce case on January 26, 2000, and a Final Decree was entered on February 17, 2000. Attorney Bud Cunningham was Plaintiffs third attorney and represented plaintiff in the divorce case to its completion on January 21, 2000. He was not named as a defendant in this action. Plaintiffs Complaint does refer to his unsatisfactory representation for failure to prepare the case adequately by not impeaching the plaintiffs now ex-wife when she denied the existence of a marital debt to plaintiffs mother for $127,000.00.

The crux of plaintiffs dissatisfaction centers around the Trial Court’s division of the marital assets and debt. The Court charged the plaintiff with the responsibility for a marital debt owed to plaintiffs mother of $127,000.00, on property ultimately awarded to the wife. Plaintiffs wife had denied the existence of any marital debt in this regard, but the Trial Court credited plaintiffs testimony, characterized the debt as marital indebtedness, and ordered plaintiff to pay all the marital debts.

On March 15, 2000, defendant Rogers filed a Motion to Alter or Modify the final decree on behalf of plaintiff, but the trust deed was not addressed. On July 17, 2000, the Trial Court entered a Final Decree overruling the Motion to Alter or Amend, and defendant Rogers did not represent plaintiff beyond that juncture.

In December of 2000, plaintiff employed defendant Nunnally for the purpose of preparing instruments necessitated by the Final Judgment of Divorce, including a Note, Deed of Trust and Release of Deed of Trust. Nunnally reviewed the state of the title to the property in the Registrar of Deeds office for Greene County, and noted a Deed of Trust dated April 20, 1993 given by Leonard and Sharon Hartman to plaintiffs mother, securing an indebtedness described in the Deed of Trust. Nunnally prepared a Release of the Trust Deed because the Final Decree had awarded that property to the wife to be unencumbered by any lien. Plaintiff signed the Release on December 18, 2000, which concluded Nunnally’s representation of plaintiff.

Defendant Laughlin was employed by plaintiff to then appeal the single issue of the alimony award. The allocation of marital assets and debt was not appealed and this Court affirmed the Trial Court’s award of alimony in an Opinion filed July 20, 2001. On July 19, 2002, plaintiff filed a malpractice complaint against the defendants herein, except Nunnally, and on July 30, 2002, the Complaint was non-suited. On July 10, 2003, the malpractice complaint herein was filed, and also named Nunnally as a defendant.

It is plaintiffs position that he had forgotten about executing the Deed of Trust on April 23, 1993, and never advised any of his attorneys of its existence until it was brought to his attention by Nunnally.

This Court, in reviewing summary judgments, accord no presumption of correctness to the lower Court’s judgments, because the issues are questions of law. Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn.2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997). To properly support a motion for summary judgment, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998).

In Cherry v. Williams, 36 S.W.3d 78 (Tenn.Ct.App.2000), we said:

Defenses based on a statute of limitations are particularly amenable to summary judgment motions. [Citation omitted]. Most often the facts material to a statute of limitations defense are not in dispute. When the facts and the inferences reasonably drawn from the facts are not disputed, the courts themselves can bring to bear the applicable legal principles to determine whether the moving party is entitled to a judgment as a matter of law. Cherry, 36 S.W.3d at 83.

A cause of action for legal malpractice accrues and the statute of limitations commences when: (1) the attorney had committed negligence; (2) the defendant’s negligence causes the plaintiff to suffer a legally cognizable or actual injury; and (3) the plaintiff knows, or in the exercise of reasonable care and diligence should have discovered the existence of facts constituting negligence by the attorney at the injury caused thereby. Carvell v. Bottoms, 900 S.W.2d 23, 28, 30 (Tenn.1995); Caldonia Leasing v. Armstrong, Allen, Braden, Goodman, McBride & Prewitt, 865 S.W.2d 10, 13 (Tenn.Ct.App.1992); Ameraccount Club, Inc. v. Hill, 617 S.W.2d 876, 878-79 (Tenn.1981).

Plaintiff argues that his “injury” did not occur until his loss in the Court of Appeals in July 2001, eighteen months after the final decree of divorce, because only then did he finally understand he had no recourse against his wife for a portion of the debt owed to his mother. Because he had relied upon his attorneys’ representations to him that everything was proceeding normally up till that point, and he insists, he did not comprehend the legal effect of the deed of trust when it was brought to his attention in December, 2000, and he should not be imputed with knowledge of it. This position ignores the fact that plaintiff himself had actual knowledge of this document, having executed it in 1993.

The statute of limitations is tolled if an attorney fraudulently conceals facts from a client, but the statute is not tolled where the client is aware that the court has ruled against him on the issue. Cherry, 36 S.W.3d at 86: “ ‘[W]e do not believe that reliance upon erroneous legal advice can operate to toll the statute of limitations’ inasmuch as the discovery rule relating to injury only applies to matters of fact unknown to a prospective plaintiff, not to matters of law.” Id. Quoting Spar Gas, Inc. v. McCune, 908 S.W.2d 400, 404 (Tenn.Ct.App.1995).

In the Carvell case, this Court implied that a client could not be deemed to have the knowledge of a legal injury until he had been so advised by another professional. However, the Supreme Court rejected this as a standard for discovery of a cause of action for professional misconduct noting:

[I]t is not required that the plaintiff actually know that the injury constitutes a breach of the appropriate legal standard in order to discover that he had a right of action, the plaintiff is deemed to have discovered the right of action if he is aware of facts sufficient to put a reasonable person on notice that he had suffered an injury as a result of a wrongful conduct.

Carvell, 900 S.W.2d, 23, 28 (Tenn.1995). Quoting Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn.1994). Moreover, a plaintiff may not wait until he knows of all the injurious effects or consequences of an actionable wrong before taking action. Security Bank & Trust Co., 673 S.W.2d at 864-65. It is not necessary that the injury become irremediable for purposes of the limitations period; rather it must be a “legally cognizable” or “actual” injury. Carvell, 900 S.W.2d at 29-30; Bradson Mercantile, Inc., v. Crabtree, 1 S.W.3d 648, 653 (Tenn.Ct.App.1999). Actual injury is said to exist when the plaintiff is forced to take some action or otherwise suffer “some actual inconvenience” such as incurring an expense, as a result of a negligent or wrongful act, John Kohl & P.C. v. Dear bom & Ewing, 977 S.W.2d 528, 531 (Tenn. 1998), or has suffered the loss of a right, remedy, or interest, or the imposition of a liability. Cherry, at 84. In litigation, the most easily identifiable time when this occurs is the entry of an adverse judgment. Id. In the case at bar, the final divorce decree was entered on February 7, 2000. Plaintiffs Motion to Alter or Amend the Judgment was denied by Order entered July 19, 2000.

Since Carvell, Tennessee has consistently rejected the argument that an appeal tolls the running of the statute in all cases. See Cherry v. Williams, 36 S.W.3d 78 (Tenn.Ct.App.2000) (statute of limitations not delayed despite court of appeals’ affirming trial court award of damages and increasing the award of punitive damages.); Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648 (Tenn.Ct.App.1999); Wilkins v. Dodson, Parker, Shipley, Behm & Seaborg, 995 S.W.2d 575 (Tenn.Ct.App. 1998).

The reason for the rule is self-evident. If a legal injury has occurred, whether or not it is corrected later at the appellate level does not erase the fact that the injury had occurred in the first place. The standard for accrual of the cause of action is “legally cognizable” not “final disposition”. Indeed, the Supreme Court has held that the legal error by a trial court which delays the final disposition of a lawsuit, even though the error is eventually corrected, will not toll the running of the statute of limitations where the elements for malpractice are present. Chambers v. Dillow, 713 S.W.2d 896, 898 (Tenn.1986). The discovery rule refers to matters of fact, not to matters of law. Spar Gas, Inc. Giving the plaintiff the benefit of the doubt that he has sustained a legal injury, he “learned” about the deed of trust in December 2000, and he realized that his wife had testified falsely about the indebtedness. Moreover, he had actual knowledge about the document from its execution, but had “forgotten about it”. There is no basis in law or fact in this record to toll the filing of a malpractice action for two years after the divorce judgment had been finally entered. We conclude that the statute of limitations ran as to all defendants prior to the filing of this action as found by the Trial Court.

We affirm the Judgment of the Trial Court on this issue, and pretermit the other issues raised on appeal.

The cost of the appeal is assessed to Leonard Hartman.

      . The parties through their attorneys filed a joint statement of assets and liabilities in the divorce trial. An exhibit in evidence at that trial sets forth, “Debt to Husband’s Mother” His value “$127,000.00.” Her value "$0”.

      . This Court, in its Opinion on the appeal of the divorce referenced the disputed debt thusly:
      The Trial Court also ordered defendant [plaintiff herein] to pay all of the parties' marital debts of $239,000.00. As one of the parties’ marital debts, defendant claimed a debt owed to his mother in the amount of $127,000.00. Plaintiff disputed that this was a marital debt.

      . Plaintiff's discontent focused on the fact that attorney Cunningham was unprepared to impeach plaintiffs wife with the deed of trust si trial, and that she received the property free and clear without sharing any responsibility for the debt.