                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                     ASSIGNED ON BRIEFS OCTOBER 19, 2001

PAUL FARNSWORTH a/k/a RONNIE BRADFIELD v. RICHARD KENYA

                    Direct Appeal from the Circuit Court for Lake County
                    No. 97-7590; The Honorable R. Lee Moore, Jr., Circuit



                    No. W2001-00961-COA-R3-CV - Filed January 9, 2002


This appeal arises from the Appellees’ denial of the Appellant’s request to marry during the
Appellant’s incarceration. The Appellant filed a complaint in the Circuit Court of Lake County
against the Appellees for breach of contract and retaliation. The Appellees filed a motion to dismiss
claiming that the Appellant failed to exhaust his administrative remedies and failed to state a claim
for which relief can be granted. The Appellees filed a motion to stay discovery. The Appellant filed
a motion for leave to amend his complaint. The Appellant sought to add new defendants and
additional claims that were unrelated to his original claim. The trial court granted the Appellees’
motion to dismiss. On appeal, this Court found that the trial court failed to rule on the motion to
amend the original complaint. This Court dismissed the appeal on the basis that the order appealed
from was not a final judgment.

        The trial court entered an order granting the motion to stay discovery, denying the motion to
amend the original complaint, and dismissing the case. The Appellant appeals the decision of the
Circuit Court of Lake County granting the motion to stay discovery, denying the motion to amend
the original complaint, and dismissing the case. For the reasons stated herein, we affirm the trial
court’s decision.

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

ALAN E. HIGHERS , J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD , J., joined.

Paul Farnsworth, Henning, TN, pro se

Paul G. Summers, Attorney General & Reporter, Michael Moore, Solicitor General, Pamela S.
Lorch, Assistant Attorney General, Nashville, TN, for Appellees




                                            OPINION
                                          I. Facts and Procedural History

        The Appellant, Paul Farnsworth aka Ronnie Bradfield (“Mr. Farnsworth”), is an inmate in
the Lake County Regional Correctional Facility in Lake County, Tennessee. Since he was
incarcerated, Mr. Farnsworth had been visited by Wanda Stinson (“Ms. Stinson”), who identified
herself on Mr. Farnsworth’s visitation records as his half-sister. Mr. Farnsworth’s institutional file
identified Tammy Williams (“Ms. Williams”) as his wife.

         In or around August, 1995, Mr. Farnsworth advised the Appellee, prison chaplain Richard
Kenyon1 (“Mr. Kenyon”), of his intention to marry Ms. Stinson. Mr. Kenyon provided the required
forms to Mr. Farnsworth. Mr. Farnsworth returned the completed forms to Mr. Kenyon. Mr.
Kenyon confirmed that Mr. Farnsworth was permitted to marry Ms. Stinson. On February 15, 1996,
the Appellee, associate warden Stephen Dotson (“Mr. Dotson”), sent Mr. Farnsworth a letter
informing him that the marriage scheduled for February 17, 1996 was not approved. Mr. Dotson
informed Mr. Farnsworth that the marriage was not approved because Ms. Stinson was listed in the
visitation records as his half-sister and his institutional file identified Ms. Williams as his wife. Mr.
Dotson insisted that Mr. Farnsworth provide documentation to Mr. Kenyon that he was not already
married to Ms. Williams and was not related to Ms. Stinson. Mr. Farnsworth failed to provide the
requested information and failed to file a grievance with the grievance committee.

        On January 31, 1997, Mr. Farnsworth filed a complaint in the Circuit Court of Lake County
against the Appellees, two John Doe defendants, Mr. Kenyon, and Mr. Dotson (“the defendants”).
The complaint alleged that the permission to marry given by Mr. Kenyon created a right to marry
and a binding contract which was breached. The complaint further alleged that Mr. Kenyon
cancelled the wedding in retaliation for Mr. Farnsworth’s pending lawsuit against Mr. Dotson. The
complaint sought compensatory and punitive damages. On March 3, 1997, the defendants filed a
motion to dismiss in accordance with section 41-26-806 of the Tennessee Code because Mr.
Farnsworth failed to file an affidavit stating that he filed a grievance as well as a copy of the final
decision of the grievance committee. The defendants also asserted that Mr. Farnsworth failed to
state a claim upon which relief can be granted because Tennessee law prohibits marriage between
siblings and prohibits bigamy.

        On March 7, 1997, Mr. Farnsworth filed a motion for extension of time to respond to the
motion to dismiss claiming that he had the right to conduct discovery. On March 10, 1997, the trial
court ordered Mr. Farnsworth to respond to the motion to dismiss on or before March 31, 1997. On
March 11, 1997, the defendants filed the affidavit of Mr. Kenyon in support of the motion to dismiss.
On March 24, 1997, the defendants filed a motion to stay discovery until the trial court ruled on the
motion to dismiss. On April 1, 1997, Mr. Farnsworth filed an opposition in response to the motion
to dismiss. Mr. Farnsworth submitted an unsworn affidavit in support of his opposition to the
motion to dismiss. On May 13, 1997, Mr. Farnsworth filed an amendment to his original complaint


           1
               Mr. Farnsworth identifies Mr. Kenyon as “Mr. Kenya.” According to his affidavit, his correct name is Mr.
Kenyo n.

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in which he attempted to add new defendants and allege new causes of action under the First
Amendment and the Eighth Amendment which were unrelated to his original claim. On May 19,
1997, the defendants filed an opposition to the amendment to original complaint. On May 22, 1997,
Mr. Farnsworth filed a motion for leave of court to amend his complaint.

        On May 27, 1997, the trial court granted the motion to dismiss. On June 6, 1997, Mr.
Farnsworth filed a notice of appeal. This Court found that the trial court failed to rule on the motion
to amend the original complaint. This Court dismissed the appeal on the basis that the order
appealed from was not a final judgment. On February 21, 2001, the trial court entered an order
granting the motion to stay discovery, denying the motion to amend the original complaint, and
dismissing the case pursuant to the May 27, 1997 order of dismissal. On March 7, 2001, Mr.
Farnsworth filed a motion claiming that the trial court could not grant a motion to dismiss until he
was allowed discovery and seeking to withdraw his in forma pauperis application in an attempt to
make the administrative requirements pursuant to section 41-21-806 of the Tennessee Code
inapplicable to this case. On March 20, 2001, the defendants filed a motion in opposition to the
post-dismissal motion. On March 22, 2001, the trial court denied the post-dismissal motion. This
appeal followed.

                                      II. Standard of Review

        The standard of review for a non-jury case is de novo upon the record. See Wright v. City
of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the
trial court’s factual findings, unless the preponderance of the evidence is otherwise. See TENN. R.
APP . P. 13(d). For issues of law, the standard of review is de novo, with no presumption of
correctness. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

                                      III. Law and Analysis

       The following issues, as we perceive them, are presented for our review:

1. Whether Mr. Farnsworth was bound by section 41-21-806 of the Tennessee Code;
2. Whether Mr. Farnsworth should have been allowed discovery before his complaint was
dismissed; and
3. Whether the trial court erred by denying Mr. Farnsworth’s motion to amend his original
complaint.

We will examine each issue in turn.

         The first issue presented for our review is whether Mr. Farnsworth was bound by section 41-
21-806 of the Tennessee Code. In 1996, the Tennessee Legislature enacted section 41-21-801 et
seq. of the Tennessee Code which establishes requirements for lawsuits by inmates. Section 41-21-
802 states that section 41-21-801 et seq. applies only to a claim brought by an inmate in which an



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affidavit of inability to pay costs is filed with the claim. See TENN. CODE ANN . § 41-21-802 (1996).
Section 41-21-806(a) provides, in pertinent part:

                  (a) An inmate who files a claim that is subject to review by the
                  grievance committee established by the department shall file
                  with the court an affidavit stating the date that the grievance
                  was filed and the date the final decision was received by the
                  inmate with a copy of the final decision from the grievance
                  committee.

TENN. CODE ANN . § 41-21-806(a) (1996).

In the case at bar, the trial court dismissed Mr. Farnsworth’s complaint on the basis that he failed to
comply with section 41-21-806(a).

        Mr. Farnsworth now claims for the first time on appeal that the requirements of section 41-
21-801 et seq. are inapplicable to this case because he did not file his complaint in forma pauperis.
From our review of the record, we find that Mr. Farnsworth failed to raise this issue in the trial
court.2 An appellant may not raise an issue for the first time on appeal. See State Dep’t of Human
Services v. Defriece, 937 S.W.2d 954, 960 (Tenn. Ct. App. 1996) (citing Simpson v. Frontier
Community Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991); Lawrence v. Stanford, 655 S.W.2d
927, 929 (Tenn. 1983)). Because Mr. Farnsworth failed to raise this issue prior to the appeal, we
find this issue is without merit.

         The second issue presented for our review is whether Mr. Farnsworth should have been
allowed discovery before his complaint was dismissed. In cases involving lawsuits by inmates as
in the case at bar, section 41-21-804(d) of the Tennessee Code requires the trial court to suspend all
discovery upon the filing of a motion to dismiss asserting that a claim is frivolous or malicious. See
TENN. CODE ANN . § 41-21-804(d) (1996). Section 41-21-804(b) sets forth several factors for courts
to consider in determining whether a claim is frivolous or malicious, including “[t]he claim has no
basis in law and in fact.” TENN. CODE ANN . § 41-21-804(b) (1996). Because the defendants’ motion
to dismiss was based, in part, upon the assertion that Mr. Farnsworth’s claim had no basis in law and
in fact (i.e., that Mr. Farnsworth failed to state a claim upon which relief can be granted), the motion
to dismiss amounted to one that asserted Mr. Farnsworth’s claim to be frivolous or malicious. Thus,
section 41-21-804 required the trial court in this case to suspend all discovery. See Farnsworth v.
Compton, No. 02A01-9809-CV-00257, 1999 WL 360567, at *3 (Tenn. Ct. App. June 7, 1999);
Sweatt v. Compton, No. 02A01-9808-CV-00227, 1999 WL 95978, at *2 (Tenn. Ct. App. Feb. 25,
1999). Accordingly, we find this issue is without merit.




         2
           In fact, M r. Farnsworth filed a post-dismissal m otion in the trial court seeking to withdraw h is in forma
pau peris application.

                                                         -4-
        The third issue presented for our review is whether the trial court erred by denying Mr.
Farnsworth’s motion to amend his original complaint. Rule 15.01 of the Tennessee Rules of Civil
Procedure provides: “A party may amend his pleadings once as a matter of course at any time before
a responsive pleading is served . . . [o]therwise a party may amend his pleadings only by written
consent of the adverse party or by leave of court.” Although the rule provides that permission to
amend may be liberally granted, the decision to amend lies within the sound discretion of the trial
court, and will not be reversed absent a showing of abuse of discretion. See Welch v. Thuan, 882
S.W.2d 792, 793 (Tenn. Ct. App. 1994); Wilson v. Ricciardi, 778 S.W.2d 450, 453 (Tenn. Ct. App.
1989); Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979).

        In the case at bar, Mr. Farnsworth sought to amend his complaint to add new defendants and
new causes of action that were wholly unrelated to his original complaint. We do not find any
indication in the record that the trial court abused its discretion in denying the motion to amend.
Accordingly, we affirm the trial court’s decision denying Mr. Farnsworth’s motion to amend his
original complaint.

                                          IV. Conclusion

       For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellant, Paul Farnsworth aka Ronnie Bradfield, and his surety, for which
execution may issue if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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