Bobby J. SPEARS v. Wendy WEATHERALL.
Court of Appeals of Tennessee, at Jackson.
April 4, 2012.
Oct. 26, 2011 Session. Application for Permission to Appeal Denied by Supreme Court, Aug. 15, 2012.
361 S.W.3d 547
At latest, we conclude that CAS was on notice of a “potential problem” with Mr. Jones’ representation on November 22, 2006, when Cookeville filed its motion for summary judgment asserting the illegality of the contract. In addition, CAS suffered an actual injury on January 9, 2007, at the latest, when it was forced to defend Cookeville‘s motion for summary judgment. As such, the statute of limitations on CAS’ malpractice claim began to run when both components were met, i.e., January 9, 2007. CAS commenced this legal malpractice action on October 27, 2010. Accordingly, CAS’ legal malpractice suit was commenced beyond the one-year time period set by the statute of limitations. Therefore, the grant of summary judgment dismissing this case was proper.
V. Conclusion
The judgment of the Circuit Court is affirmed. Costs of this appeal are assessed to Appellant, Cardiac Anesthesia Services, P.L.L.C., and its surety.
Zachary M. Moore, Mitchell D. Mosko-
Vickie Hardy Jones, Memphis, Tennessee, for the appellee, Wendy Weatherall.
OPINION
DAVID R. FARMER, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.
This is a grandparent visitation case. Appellant is the former stepfather of the Appellee. After approximately twenty-five years of marriage, Appellant and Appellee‘s mother divorced. During the marriage, Appellant maintained a close relationship to Appellee and Appellee‘s child. Even after the divorce, Appellee allowed Appellant to regularly visit with her child. After Appellee began limiting Appellant‘s contact with her child, Appellant filed a petition for grandparent visitation. The trial court concluded that Appellant did not fall within the definition of “grandparent” under
I. Background and Procedural History
The facts relevant to the disposition of this matter are undisputed. Wendy Weatherall is the biological mother of the minor child at issue in this case, born February 12, 2005. Bobby J. Spears, was married to Ms. Weatherall‘s mother for approximately twenty-five years, and helped raise Ms. Weatherall from the time she was five years old. After Ms. Weatherall gave birth to her son, Mr. Spears became actively involved in his life as his step-grandfather. Mr. Spears saw Ms. Weatherall‘s son frequently, often picked him up from daycare and school, and occasionally paid for his private school tuition. Moreover, Ms. Weatherall and her son lived with her mother and Mr. Spears for extended periods of time during their marriage. Mr. Spears is neither the biological or adopted father of Ms. Weatherall.
On November 16, 2009, Mr. Spears and Ms. Weatherall‘s mother divorced. Although Mr. Spears was no longer her stepfather, Ms. Weatherall permitted Mr. Spears to regularly visit with her son. In July 2010, however, Ms. Weatherall began to severely limit Mr. Spears’ contact with her son.
On November 29, 2010, Mr. Spears filed a petition for grandparent visitation in Shelby County Circuit Court. Ms. Weatherall responded by filing a motion to dismiss the petition. In her motion, Ms. Weatherall argued that the trial court was without subject matter jurisdiction to grant Mr. Spears’ request for visitation because he lacked standing. Specifically, Ms. Weatherall argued that Mr. Spears lacked standing because he did not fall within the definition of “grandparent” under
On February 18, 2011, after conducting a hearing on the motion, the trial court concluded that Mr. Spears lacked standing to bring a claim for grandparent visitation because he did not fall within the definition of “grandparent” under
II. Issue Presented and Standard of Review
On appeal, the sole issue for our review is whether Mr. Spears had standing as a “grandparent” to file a petition for grandparent visitation under
III. Analysis
“When a statute creates a cause of action and designates who may bring an action, the issue of standing is interwoven with that of subject matter jurisdiction and becomes a jurisdictional prerequisite.” Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn.2004) (citing Grom v. Burgoon, 448 Pa.Super. 616, 672 A.2d 823, 824 (1996)). As a result, a court does not have subject matter jurisdiction to hear a petition for grandparent visitation unless the party filing the petition has standing.
[T]he word “grandparent” includes, but is not limited to:
(1) A biological grandparent;
(2) The spouse of a biological grandparent; or
(3) A parent of an adoptive parent.
The Tennessee Supreme Court recently summarized the applicable principles for
When dealing with statutory interpretation, well-defined precepts apply. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn.2008). Our primary objective is to carry out legislative intent without broadening or restricting the statute beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn.2002). In construing legislative enactments, we presume that every word in a statute has meaning and purpose and should be given full effect if the obvious intention of the General Assembly is not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn.2005). When a statute is clear, we apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.2004). Our obligation is simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn.2006). When a statute is ambiguous, however, we may refer to the broader statutory scheme, the history of the legislation, or other sources to discern its meaning. Colonial Pipeline, 263 S.W.3d at 836. Courts must presume that a legislative body was aware of its prior enactments and knew the state of the law at the time it passed the legislation. Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995).
Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn.2011).
Recently, in Lovlace v. Copley, M2011-00170-COA-R3CV, 2012 WL 368221 (Tenn.Ct.App. Feb. 3, 2012), we examined the “includes, but is not limited to” language at issue in the case at bar. In Lovlace, we concluded that an adoptive parent of a child‘s biological parent fit within the statutory definition of “grandparent” based on the “well-settled [law in Tennessee] that adoptive parents enjoy the same constitutionally protected rights as biological parents.” Id. at *7. Furthermore, we held that the spouse of that adoptive parent, by virtue of marriage, had the same standing as the spouse of a biological grandparent under
Grandparent visitation statutes must be narrowly construed in order to comport with the state and federal constitutions, because they are in derogation of the parents’ fundamental constitutional rights. See, e.g., In Matter of Rupa, 161 N.H. 311, 317, 13 A.3d 307 (2010). Thus, while the language in Tennessee‘s statute permits the court to verge slightly beyond the three enumerated subsections defining ‘grandparent,’ the Constitution requires us to do so with great prudence.
[N]owhere in the statutory definition of grandparent is there any language indicating that the quality of the relationship is considered in determining whether the petitioners meet the statutory definition. Rather, the structure and language of the statute as a whole show clearly that the court is to first determine whether the petitioners are ‘grandparents’ within the statutory definition.
If the court finds that the petitioners do not fit within the statutory definition of ‘grandparent,’ the inquiry goes no further. Only if the court finds that the petitioners are ‘grandparents’ does the court go on to determine ‘the presence of a danger of substantial harm to the child,’ explicitly considering whether the child had a ‘significant existing relationship’ with the petitioning grandparents.
Based upon the foregoing, we conclude that Mr. Spears is not a “grandparent” as defined under
IV. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are taxed to the Appellant, Bobby J. Spears, for which execution may issue if necessary.