                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                       May 15, 2001 Session

    LINDSAY L. TAYLOR, PAMELA J. TAYLOR, and JOHN SIDNEY
                         TAYLOR
                            v.
 AL BEARD and SOUTHEASTERN MOTOR FREIGHT COMPANY, INC.

                        Appeal from the Circuit Court for Shelby County
                         No. 84505 T.D.    Robert L. Childers, Judge


                    No. W2000-02768-COA-R3-CV - Filed February 6, 2002


This case involves the application of the statute of limitations to personal injury claims. The
plaintiffs are the parents of a minor child who was injured in an automobile accident with the
defendant in October 1995. The plaintiffs reached a settlement agreement with the defendants for
compensation of their child’s injuries, and the parties filed a joint petition with the trial court to have
the settlement approved. For reasons which are unclear in the record, the trial court failed to approve
the settlement. In February 1999, the plaintiffs withdrew the joint petition to approve the settlement
and substituted a claim for damages on behalf of the minor child as well as the parents. In May
1999, the defendants filed a motion for summary judgment on the individual claims of the parents,
arguing that these claims were barred by the one-year statute of limitations. The trial court granted
the defendants’ summary judgment motion. The plaintiffs appealed. We affirm, finding that the
issues raised on appeal were not raised to the trial court and therefore cannot be considered on
appeal.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

HOLLY KIRBY LILLARD , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS , J., joined.

Larry E. Parrish, Memphis, Tennessee, for the appellants Pamela J. Taylor and John Sidney Taylor

Tim W. Hellen, Memphis, Tennessee, for the appellee Al Beard.

                                               OPINION

       This case involves the application of the statute of limitation to personal injury claims.
Appellants Pamela and John Taylor (“Parents”) are the parents of Lindsay Taylor. In October 1995,
Lindsay was involved in a motor vehicle accident while riding as a passenger in a car driven by her
mother. At the time of the accident, Lindsay was 13 years old. Appellee Al Beard (“Beard”) was
a truck driver employed by appellee Southeastern Motor Freight Company (“Southeastern”). The
parents alleged that Beard’s negligent operation of his truck caused the accident that resulted in
Lindsay’s injuries.

       The parties began settlement negotiations; however, no lawsuit was filed at this point. The
negotiations resulted in a proposed settlement agreement regarding Lindsay’s claims in September
1996. On January 17, 1997, the parties filed a joint petition with the trial court to have the settlement
regarding the minor approved. For reasons not apparent in the record, the trial court failed to
approve the settlement.

        In December 1998, the Parents, on behalf of Lindsay, filed a motion to “amend” the joint
petition to approve the settlement by deleting it in its entirety and substituting a complaint seeking
damages against Beard and Southeastern. By order dated February 22, 1999 the trial court dismissed
the joint petition and permitted the Parents to file a complaint against Beard and Southeastern.
Thereafter, the Parents filed a complaint which, in addition to claims on behalf of Lindsay for her
injuries, also included claims made individually by the Parents for Lindsay’s medical expenses and
the loss of Lindsay’s services.1

        In his Answer, Beard asserted that the claims of the Parents were barred by the Tennessee
statute of limitations, Tennessee Code Annotated § 28-3-104, which requires that claims for personal
injuries be brought within one year. Thereafter, Beard filed a motion for summary judgment seeking
dismissal based on the statute of limitations.

        Beard’s motion for summary judgment was heard on July 23, 1999. At the hearing, Beard
argued that the complaint was filed more than three years after the date of the accident and, thus, the
Parents’ claims were time-barred. The Parents asserted that, as to the medical expenses, the statute
of limitations began to run only after the expenses were incurred. As to their claim for loss of child’s
services, the Parents argued that their claim asserted neither an injury to the person governed by the
one-year statute of limitations, Tennessee Code Annotated § 28-3-104, nor an injury to property
governed by the three-year statute of limitations, Tennessee Code Annotated § 28-3-105. Therefore,
the Parents contended, the “catchall” ten-year statute of limitations, Tennessee Code. Annotated §
28-3-110(3), should apply. While noting that the Parents made an “interesting argument,” the trial
court granted Beard’s motion for summary judgment as to the Parents’ claims for medical expenses
and the loss of Lindsay’s services.

        A jury trial was held as to Lindsay’s claims, which resulted in a judgment in Lindsay’s favor
in October 2000. The Parents then appealed the trial court’s grant of summary judgment on their
individual claims. On appeal, the Parents now argue that the statute of limitations was tolled
pending the trial court’s decision on whether to approve the settlement regarding Lindsay’s claims.
In addition, the Parents argue that their claims are derivative of Lindsay’s personal injury claim and,

         1
           Tennessee Code Annotated § 20-1-105(a) provides, “the father and mother of a minor child have equ al rights
to ma intain an action for the expenses and the actual loss of service resulting from an injury to a minor child in the
parents’ service o r living in the fam ily. . . .”

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therefore, the statute of limitations would be tolled as to their claims during Lindsay’s disability as
a minor.

        In this appeal, the Parents assert arguments not argued to the trial court below. In the trial
court, the Parents argued that their claims were for neither injury to the person nor injury to property
and would therefore be governed by the ten-year statute of limitations. This argument was rejected
by the trial court. In this appeal, the Parents assert a wholly different argument, namely, that the
running of the statute of limitations was tolled (1) during the time in which the joint petition for
approval of the settlement of Lindsay’s claims was pending, and (2) during Lindsay’s disability as
a minor because the Parents’ claims are derivative of Lindsay’s claims. Neither of these arguments
were made in the proceedings before the trial court.

         Of course, it is well settled that issues not presented to the trial court may not be presented
for the first time on appeal. Smith v. Harriman Util. Bd., 26 S.W.3d 879, 887 (Tenn. Ct. App.
2000) (plaintiff not allowed to raise claim for punitive damages under the tort theory of unlawful
inducement of a breach of contract where claim never appeared in the complaint and was not raised
at trial court); State Dep’t. of Human Services v. Defriece, 937 S.W.2d 954, 960 (Tenn. Ct. App.
1996) (mother not allowed to raise the issue of deficiency in parental rights termination petition
when she failed to raise any objections to the trial court); Hobson v. First State Bank, 801 S.W.2d
807, 812-813 (Tenn. Ct. App. 1990) (class members not allowed to raise issue on appeal relating to
attorneys’ fees when issue was never presented at trial or at attorneys’ fees hearing). This Court has
appellate jurisdiction only. Foley v. Dayton Bank & Trust, 696 S.W.2d 356, 359 (Tenn. Ct. App.
1985) (citing Tenn. Code. Ann. § 16-4-108 (1980)). Consequently, this Court may only decide
issues which were brought to the attention of the trial judge, “and acted upon or pretermitted by
him.” Clement v. Nichols, 209 S.W.2d 23, 23 (Tenn. 1948).

       The record before this Court, including the transcript of the hearing on the motion for
summary judgment, contains no indication that the arguments proffered by the Parents in this appeal
were raised to the trial court below. Consequently, we must decline to consider them in this appeal,
and the trial court’s grant of summary judgment to the Defendants on the Parents’ claims must be
affirmed.

       The decision of the trial court is affirmed. Costs are taxed to appellants, Pamela and John
Taylor, and their surety, for which execution may issue if necessary.




                                                ___________________________________
                                                      HOLLY KIRBY LILLARD, JUDGE




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