author: JANICE M. HOLDER, C.J.,

text:
    PUGH’S LAWN LANDSCAPE COMPANY, INC. v. JAYCON DEVELOPMENT CORPORATION.
    Supreme Court of Tennessee, at Jackson.
    April 7, 2010 Session.
    Sept. 22, 2010.

      Kathy Baker Tennison and Stuart B. Breakstone, Memphis, Tennessee, for the appellant, Pugh’s Lawn Landscape Co., Inc.
    Stephen F. Libby, Memphis, Tennessee, for the appellee, Jaycon Development Corporation.
   OPINION

JANICE M. HOLDER, C.J.,

delivered the opinion of the Court,

in which CORNELIA A. CLARK, GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

We granted appeal in this case to address whether parties may modify by agreement the scope of judicial review of an arbitrator’s award. We hold that judicial review of arbitration awards is governed by the Tennessee Uniform Arbitration Act (“TUAA”). As such, the provision in the parties’ arbitration agreement purporting to expand the scope of the judicial review beyond that set forth in the TUAA is invalid. We further hold that the failure of this provision constitutes a mutual mistake requiring rescission of the parties’ arbitration agreement. We therefore reverse the judgment of the Court of Appeals, vacate the trial court’s judgment confirming the arbitrator’s award, and remand this case to the trial court for further proceedings.

I. Facts and Procedural History

On March 8, 2006, Pugh’s Lawn Landscape Company, Inc. (“Pugh’s”) filed a complaint for breach of contract against Jaycon Development Corporation (“Jay-con”) in the Circuit Court for Shelby County. In its answer, Jaycon asserted a counterclaim against Pugh’s for breach of contract. The contract expressly provided that any disputes arising from the contract would be governed by Tennessee law and that any litigation or arbitration must be conducted in Tennessee. The contract did not, however, require the parties to submit to arbitration. Nonetheless, after conducting limited discovery, the parties agreed to submit the matter to arbitration.

On May 15, 2007, the trial court entered a consent order captioned “Order of Reference to Arbitration and Reservation of Appellate Rights” (“consent order”), which provided as follows:

The parties agree that a) any and all findings, rulings or judgments issued by the arbitrator shall be appealable, using the same standards of review, as if the finding, ruling or judgment in question was issued by [the trial court]; b) that the agreement that the arbitrator’s ruling is appealable was material consideration for the agreement of each party to submit this matter to arbitration.

A local attorney conducted the arbitration in May 2007 and issued a written decision on December 11, 2007, awarding Jaycon $51,082.20 in damages, plus attorneys fees, court costs, and the cost of the arbitration. On January 4, 2008, Jaycon filed a motion asking the trial court to confirm the arbitrator’s award. Pugh’s did not file a response. On January 18, 2008, the trial court entered an order confirming the arbitrator’s award and entering judgment in favor of Jaycon.

Pugh’s appealed. Relying on the language in the consent order permitting either party to seek an appeal, Pugh’s asked the Court of Appeals to review the arbitrator’s award pursuant to the parties’ “reservation of appellate rights.” At oral argument, the Court of Appeals sua sponte raised the issue of whether parties may modify by agreement the scope of judicial review of an arbitrator’s award and ordered the parties to file supplemental briefs. The Court of Appeals held that judicial review of an arbitrator’s decision is statutorily limited by the Tennessee Uniform Arbitration Act (“TUAA”) and that parties may not modify by agreement the scope of judicial review of an arbitrator’s award from that set forth in the TUAA. Having so held, the intermediate appellate court affirmed the trial court’s order confirming the arbitrator’s award.

Pugh’s filed a petition for rehearing in which Pugh’s contended that the consent order’s provision for expanded judicial review was a material element of the parties’ agreement to arbitrate and that the agreement should be rescinded based on mutual mistake. The Court of Appeals denied the petition for rehearing based on Pugh’s failure to object in the trial court to Jaycon’s motion to confirm the arbitration award and raise the issue of mutual mistake. The intermediate appellate court held that the record therefore lacked sufficient information from which to determine the validity of the agreement to arbitrate.

We granted Pugh’s application for permission to appeal to determine whether parties may agree to a scope of judicial review of an arbitrator’s award that differs from the judicial review set forth in the TUAA.

II. Analysis

A. Scope of Review of an Arbitration Award in Tennessee

An agreement to arbitrate is governed by the TUAA. Tenn.Code Ann. §§ 29-5-301 to -320 (2000). The TUAA provides that

(a) A written agreement to submit any existing controversy to arbitration ... is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the revocation of any contract. ...
(b) The making of an agreement described in this section providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this part and to enter judgment on an award thereunder.

Tenn.Code Ann. § 29-5-302. We have held that “[a] judgment by consent is in substance a contract of record made by the parties and approved by the court.” Third Nat. Bank v. Scribner, 212 Tenn. 400, 370 S.W.2d 482, 486 (1963); accord Harbour v. Brown, 732 S.W.2d 598, 599-600 (Tenn.1987). Thus, the parties’ agreement to arbitrate embodied in the consent order falls within the scope of the TUAA.

Three statutes describe the judicial review that a court must apply when asked to enforce an arbitration award pursuant to the TUAA. See Tenn.Code Ann. §§ 29-5-312 to -314. Pursuant to section 29-5-312, “the court shall confirm an award, unless, within the time limits hereinafter imposed, grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in §§ 29-5-313 and 29-5-314.” (Emphasis added). The grounds enumerated in sections 29-5-313 and 29-5-314 for vacating, modifying, or correcting an arbitration award are narrow.

In this case, however, the parties agree that they did not intend to invoke the narrow judicial review provisions provided in the TUAA. To obtain review pursuant to the TUAA, one of the parties was required to request that the trial court vacate, modify, or correct the arbitrator’s award pursuant to the limited grounds set forth in the TUAA. See id. §§ 29-5-313, - 314. Neither party objected to the trial court’s confirmation of the award, and therefore neither party preserved a basis for appeal from the trial court’s confirmation. See id. § 29-5-312.

Instead, the parties in this case attempted to appeal the arbitrator’s award, not the trial court’s confirmation of the award. To do so, the parties included a provision in their consent order stating that the arbitrator’s award “shall be appealable, using the same standards of review, as if the finding, ruling or judgment in question was issued by [the trial court].” Simply put, they attempted to make the decision of the arbitrator the judgment or ruling of the trial court and to permit an appeal therefrom.

We therefore must determine whether an arbitration agreement may provide for a judicial review of an arbitration award that is broader than the scope of review provided by the TUAA or whether the application of the TUAA limits the manner in which the arbitrator’s award may be reviewed. This is an issue of law, which we review de novo. Edwards v. Allen, 216 S.W.3d 278, 284 (Tenn.2007).

We have not addressed this issue directly, but we previously have touched on the role of trial courts in arbitration. In Arnold v. Morgan Keegan & Co., Inc., we observed that the language of the TUAA evinced the General Assembly’s intent “to limit the trial court’s authority to retry issues decided by arbitration.” 914 S.W.2d 445, 448 (Tenn.1996). We also emphasized the importance of finality in the arbitration award process: “To permit a dissatisfied party to set aside the arbitration award and to invoke the Court’s judgment upon the merits of the cause would render arbitration merely a step in the settlement of the dispute, instead of its final determination.” Id. at 452.

In Arnold, we relied heavily on the United Stated Supreme Court’s decision in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), which concerned the Federal Arbitration Act (“FAA”). We explained that both the FAA and the TUAA were adopted “to promote private settlement of disputes, thereby bypassing the courts. As such, the scope of review advanced by the United States Supreme Court has equal application in a case under the [TUAA] to the extent that such review furthers the common goal of acts.” Arnold, 914 S.W.2d at 448 n. 2. For the same reason, the United States Supreme Court’s decision in Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), also concerning the FAA, guides our analysis of the issue presented in this case.

In Hall Street, the Supreme Court rejected the parties’ agreement to expand the trial court’s review of their arbitration awards under the FAA. The arbitration agreement between the parties in Hall Street provided that the trial court “shall vacate, modify or correct any award: (i) where the arbitrator’s findings of facts are not supported by substantial evidence, or (ii) where the arbitrator’s conclusions of law are erroneous.” Id. at 579, 128 S.Ct. 1396. The arbitration agreement was executed and entered as an order of the trial court during the course of litigation, like the consent order in this case, and did not expressly invoke the FAA. Id. at 590-91, 128 S.Ct. 1396.

Like the TUAA, three statutes describe the judicial review that a court must apply when asked to enforce an arbitration award pursuant to the FAA. 9 U.S.C. §§ 9-11 (2006). Pursuant to section 9 of the FAA, a court “must” confirm an arbitration award “unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11.” Like sections 29-5-313 and 29-5-314 of the TUAA, the grounds for vacating, modifying, or correcting an arbitration award under sections 10 and 11 of the FAA are narrow. In Hall Street, the Court applied “basic interpretive principles” to these judicial review provisions to determine “whether the FAA has textual features at odds with enforcing a contract to expand judicial review following the arbitration.” Hall Street, 552 U.S. at 586, 128 S.Ct. 1896. The Court characterized the grounds for review under the FAA as remedies for “egregious departures from the parties’ agreed-upon arbitration,” id., and concluded that these grounds evinced “a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway.” Id. at 588,128 S.Ct. 1396.

In the Supreme Court’s view, permitting parties to expand the FAA’s judicial review provisions would “open[ ] the door to the full-bore legal and evidentiary appeals that can ‘rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,’ and bring arbitration theory to grief in post-arbitration process.” Id. (citations omitted). The Hall Street majority carefully limited its holding, however, explaining that its interpretation of the FAA did not “exclude more searching [judicial] review based on authority outside the statute.” Id. at 590, 128 S.Ct. 1396. Parties “may contemplate enforcement under state statutory or common law, for example, where judicial review of different scope is arguable.” Id. We have reviewed the language of the TUAA and have concluded, in short, that the rationale proffered by the United States Supreme Court in Hall Street applies with equal force to the ease before us.

We first observe that the language of the judicial review provisions in the TUAA are substantially similar to those in the FAA. Compare TenmCode. Ann. §§ 29-5-312 to -314 with 9 U.S.C. §§ 9-11. To the extent that these statutory schemes are different, the judicial review provisions in the TUAA are more restrictive. In reaching its conclusion that the FAA’s judicial review provisions are mandatory, the Hall Street Court emphasized the language in section 9 stating that a court “must grant” confirmation “unless the award is vacated, modified, or corrected as prescribed by sections 10 and 11.” Hall Street, 552 U.S. at 587, 128 S.Ct. 1396 (quoting 9 U.S.C. § 9). Likewise, section 29-5-312 of the TUAA employs mandatory language, stating that “the court shall confirm an award, unless ... grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in §§ 29-5-313 and 29-5-314.” (Emphasis added). However, the FAA employs permissive language in sections 10 and 11, stating that the reviewing court “may” vacate, modify, or correct an award pursuant to the enumerated circumstances. The TUAA, on the other hand, continues to employ mandatory language in sections 29-5-313 and 29-5-314, stating that the reviewing court “shall” vacate, modify, or correct an award pursuant to the enumerated circumstances.

We also held in Arnold that an arbitration award cannot be vacated under the TUAA because it is “irrational” while federal courts have held that an award could be vacated on this ground under the FAA. Arnold, 914 S.W.2d at 451. We rested our holding on two observations. First, we noted that while the TUAA provides for vacation of an award because “[t]he arbitrators exceeded their powers,” Tenn.Code Ann. § 29-5-313(a)(3), the FAA provides for vacation of an award on broader grounds: “where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4). Second, we noted that the FAA does not include the limiting language of section 29-5-313(a) of the TUAA expressly disallowing vacation of an award on the ground that “the relief was such that it could not or would not be granted by a court of law or equity.” Tenn.Code Ann. § 29-5-313(a)(5).

Finally, the General Assembly has directed that the TUAA be “construed so as to effectuate its general purpose to make uniform the law of those states which enact it.” Tenn.Code Ann. § 29-5-320. We look to other states for guidance. Id. A slim majority of state courts that have addressed whether parties may expand the scope of judicial review provided in their own versions of the UAA have taken the position espoused in Hall Street See Brucker v. McKinlay Transp., Inc., 454 Mich. 8, 557 N.W.2d 536, 541 (1997) (holding that the parties’ arbitration agreement was unenforceable to the extent its definition of the role of a the circuit court conflicted with the Michigan arbitration statute); John T. Jones Constr. Co. v. City of Grand Forks, 665 N.W.2d 698, 704 (N.D.2003) (holding that “parties to an arbitration agreement cannot contractually expand the scope of judicial review beyond that provided by statute”); Barnett v. Hicks, 119 Wash.2d 151, 829 P.2d 1087, 1095 (1992) (en banc) (holding that “the nature and scope of review of the arbitrator’s decision cannot be stipulated to by the parties”). But see Cable Connection, Inc. v. DIRECTV, Inc., 44 Cal.4th 1334, 82 Cal.Rptr.3d 229, 190 P.3d 586, 589 (2008) (holding on statutory and contractual grounds that parties may obtain judicial review on the merits by express agreement); HH E. Parcel, LLC v. Handy & Hannan, Inc., 287 Conn. 189, 947 A.2d 916, 926 n. 16 (2008) (“Parties to agreements remain ... free to contract for expanded judicial review of an arbitrator’s findings.”).

For the above-stated reasons, we hold that the TUAA governs judicial review of arbitration awards. Pugh’s and Jaycon’s consent order therefore impermissibly expanded the scope of judicial review beyond the scope of review provided in Tennessee Code Annotated sections 29-5-312, -313, and -314.

B. Effect of the Invalidity of the Scope of Review Provision

We turn now to the question of whether the failure of the consent order provision expanding judicial review requires that we reform the agreement and review the award under the narrow review provisions of the TUAA or rescind the agreement and remand the case to the trial court.

As a preliminary matter, we disagree with the Court of Appeals’ determination that the issue of the validity of the consent order is waived because Pugh’s did not object to Jaycon’s motion to confirm the arbitrator’s award in the trial court. Generally speaking, we agree with the Court of Appeals that an issue cannot be raised for the first time on appeal. See Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.1991). However, neither party challenged at the trial level the provision in the consent order purporting to expand judicial review. The Court of Appeals raised this issue sua sponte during oral argument. Thereafter, Pugh’s argued in its supplemental brief filed in the Court of Appeals that the failure of the provision purporting to expand judicial review rendered the consent order invalid and mandated a remand to the trial court. The Court of Appeals also erred in finding that the record did not contain sufficient facts on which to make a finding on the validity of the parties’ agreement to arbitrate. It is undisputed that the consent order embodies the only arbitration agreement between the parties.

In accord with the general principle that rescission is not favored in Tennessee, Klosterman Dev. Corp. v. Outlaw Aircraft Sales, Inc., 102 S.W.3d 621, 631 (Tenn.Ct.App.2002), we have held that a consent order cannot be set aside unless entered through fraud or mistake. Gardiner v. Word, 731 S.W.2d 889, 893 (Tenn.1987); Third Nat. Bank, 370 S.W.2d at 487. This Court has explained that a “mistake” exists in a legal sense when a person, acting on an erroneous conviction of law or fact, executes an instrument that he or she would not have executed but for the erroneous conviction. State ex rel. Mathes v. Gilbreath, 181 Tenn. 498, 181 S.W.2d 755, 757 (1944); Metro. Life Ins. Co. v. Humphrey, 167 Tenn. 421, 70 S.W.2d 361, 362 (1934). A court may not rescind a contract for mistake unless the mistake is innocent, mutual, and material to the transaction and unless the complainant shows an injury. Klosterman Dev. Corp., 102 S.W.3d at 632 (quoting Robinson v. Brooks, 577 S.W.2d 207, 209 (Tenn.Ct.App.1978)); see also Atkins v. Kirkpatrick, 823 S.W.2d 547, 553 (Tenn.Ct.App.1991); Wilson v. Mid-State Homes, Inc., 53 Tenn.App. 520, 384 S.W.2d 459, 463-64 (1964).

In this case, the record clearly establishes that the mistake was innocent and mutual in that both parties anticipated that expanded judicial review would be available. Indeed, neither party challenged at the trial level the provision in the consent order purporting to expand judicial review. Instead, this issue was raised by the Court of Appeals. Moreover, the consent order states “that the agreement that the arbitrator’s ruling is appealable was material consideration for the agreement of each party to submit this matter to arbitration.” Finally, the complainant, Pugh’s, has shown an injury in that its right to appeal would be substantially limited were the arbitration agreement enforced despite the failure of the provision authorizing expanded judicial review. We therefore hold that rescission of the parties’ arbitration agreement is the appropriate remedy for the parties’ mutual mistake concerning the availability of the provision for expanded judicial review.

III. Conclusion

We hold that parties may not modify by agreement the scope of judicial review of an arbitrator’s award. Rather, judicial review of an arbitrator’s award is governed by the TUAA. Furthermore, the failure of the provision modifying the scope of judicial review in this case constitutes a mutual mistake requiring rescission of the arbitration agreement. We therefore reverse the judgment of the Court of Appeals, vacate the trial court’s judgment confirming the arbitrator’s award, and remand this case to the trial court for further proceedings. Costs of this appeal are assessed equally between the appellant, Pugh’s Lawn Landscape Company, Inc., and the appellee, Jaycon Development Corporation, for which execution may issue if necessary.

      . The Court of Appeals requested the parties to address the following issues:
      1. Whether the parties can modify by agreement the trial court’s role and responsibility in addressing the motion to confirm the arbitrator's award?
      2. Whether the parties can modify by agreement the appellate court's role and responsibility in reviewing the trial court's order confirming the arbitrator’s award?

        Pugh’s Lawn Landscape Co., Inc. v. Jaycon Dev. Corp., No. W2008-01366-COA-R3-CV, 2009 WL 1099270, at *3 (Tenn.Ct.App. April 23, 2009).

      . This case does not involve non-binding arbitration or any other method of court-annexed alternative dispute resolution contemplated by Tennessee Supreme Court Rule 31. See Tuetken v. Tuetken, 320 S.W.3d 262, 267 (Tenn.2010) (concluding that the consent order embodying the parties’ arbitration agreement did not invoke the provisions related to non-binding arbitration under Rule 31 and therefore was governed by the TUAA).

      . Section 29-5-313(a)-(b) provides that "the court shall vacate an award” where:
      (1) The award was procured by corruption, fraud or other undue means;
      (2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
      (3) The arbitrators exceeded their powers;
      (4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of § 29-5-306, as to prejudice substantially the rights of a party; or
      (5) There was no arbitration agreement and the issue was not adversely determined in proceedings under § 29-5-303 and the party did not participate in the arbitration hearing without raising the objection. The fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
      (b) An application under this section shall be made within ninety (90) days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known.
      (Emphasis added).
      Section 29-5-314 provides that "the court shall modify or correct the award” if an application is "made within ninety (90) days after delivery of a copy of the award to the applicant,” and
      (1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
      (2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
      (3)The award is imperfect in a matter of form, not affecting the merits of the controversy.
      (b) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.
      (c) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.
      (Emphasis added).

      . We also stated in Arnold that "[m]atters of law, if not able to be resolved by resort to the controlling statutes, should be considered independently, with the utmost caution, and in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." 914 S.W.2d at 450. To the extent that our opinion in Arnold can be read to adopt a standard of review of issues of law other than de novo, we take this opportunity to clarify our holding. We adopt the statement of the United States Supreme Court in First Options of Chicago, Inc. that "ordinary, not special, standards” of appellate review should apply in arbitration cases and that appellate courts need not “give extra leeway to district courts that uphold arbitrators.” 514 U.S. at 948, 115 S.Ct. 1920.

      . Section 10(a) of the FAA provides in pertinent part:
      In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
      (1) where the award was procured by corruption, fraud, or undue means;
      (2) where there was evident partiality or corruption in the arbitrators, or either of them;
      (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
      (4)where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
      (Emphasis added).
      Section 11 of the FAA provides in pertinent part:
      In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration—
      (a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
      (b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.
      (c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
      The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties.

        (Emphasis added).


source: Caselaw Access Project

license: Public Domain

text:
    Elizabeth Sams TUETKEN v. Lance Edward TUETKEN.
    Supreme Court of Tennessee, at Jackson.
    April 7, 2010 Session.
    Sept. 22, 2010.

      Kay Farese Turner and Rachael Emily Putnam, Memphis, Tennessee, for the appellant, Elizabeth Sams Tuetken.

      Adam N. Cohen and Mitchell D. Mosko-vitz, Memphis, Tennessee, for the appellee, Lance Edward Tuetken.
   OPINION

JANICE M. HOLDER, C.J.,

delivered the opinion of the Court,

in which CORNELIA A. CLARK, GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ, joined.

We granted appeal in this case to determine the trial court’s scope of review of the parties’ arbitration award. After thoroughly reviewing the record, we conclude that the parties entered into binding arbitration governed by the Tennessee Uniform Arbitration Act (“TUAA”) and reaffirm our holding in Pugh’s Lawn Landscape Co., Inc. v. Jayeon Development Corp., 320 S.W.3d 252, 254 (Tenn.2010), that the judicial review of an arbitration award is confined to the grounds enumerated in the TUAA. The provision in the parties’ arbitration agreement modifying the trial court’s scope of review therefore is invalid, and the invalidity of this provision is a mutual mistake justifying rescission of the parties’ agreement to arbitrate. Because our holding necessitates additional proceedings on remand, we further hold that parenting issues may not be submitted to binding arbitration in Tennessee because such arbitration eliminates the trial court’s determination of the children’s best interests. We therefore reverse the judgment of the Court of Appeals, vacate the judgment of the trial court, and remand the case to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

Elizabeth Sams Tuetken (“Mother”) filed a complaint for divorce in the Shelby County Circuit Court on March 13, 2001, against Lance Edward Tuetken (“Father”). The trial court entered a final decree of divorce on January 31, 2003, incorporating a parenting plan reflecting the trial court’s ruling on issues related to the parties’ son and daughter, who were ages eleven and six, respectively, at the time of trial. The parenting plan designated Mother as the primary custodial parent and required Father to pay child support. The parenting plan also addressed the children’s schedules, the allocation of decision-making authority between Mother and Father, the children’s daily care, and the rights of each parent when the children were not in his or her care.

In 2004 and 2005, Mother and Father filed cross-motions for civil contempt, each alleging that the other had failed to abide by one or more provisions in the parenting plan. In addition, Mother requested that Father’s child support be modified to reflect an increase in his earnings. In anticipation of the entry of a consent order permitting arbitration of the parties’ disputes, an arbitration hearing was held on June 20, 2006. On June 27, 2006, a “Parenting Arbitrator” submitted preliminary findings of fact and conclusions of law to the parties and requested that the parties review the document for clerical errors.

On June 28, 2006, the trial court entered a “Consent Order Appointing Parenting Arbitrator” (“consent order”). The consent order embodied the parties’ agreement to arbitrate and provided the Parenting Arbitrator with the authority “to make decisions regarding the best interests of the parties’ minor children.” The consent order detailed the manner in which an appeal from the Parenting Arbitrator could be initiated. The consent order also stated, “There is no confidentiality as to any evidence presented at such hearings.”

The Parenting Arbitrator was required to decide all issues and to set forth findings of fact and conclusions of law if requested by either party. The parties agreed that a party challenging the Parenting Arbitrator’s ruling was required to file a motion with the trial court within ten calendar days of receipt of the Parenting Arbitrator’s ruling. The consent order further provided that “[i]n the event of an appeal, the decision of the arbitrator shall be binding on the parties pending the resolution of the matter by the Trial Court, and said decision shall carry with it a presumption of correctness.” The parties also initialed a provision acknowledging “that the orders of the Parenting Arbitrator can be reviewed by the Court.” If neither party filed a timely objection, “the Parenting Arbitrator shall cause his or her order to be signed by the Court.”

Father filed a motion in the trial court objecting to the Parenting Arbitrator’s June 27, 2006 decision. The Parenting Arbitrator thereafter filed amended findings and conclusions with the trial court requiring the parties to complete their child support worksheets and participate in another arbitration hearing to resolve issues concerning the education of the parties’ son. Father filed a motion to continue the parties’ second scheduled arbitration until his objections to the Parenting Arbitrator’s June 27, 2006 decision could be heard by the trial court. He also filed a petition in the trial court to reduce his child support.

The trial court entered an order on May 18, 2007, ruling that Father was required to submit all issues to the Parenting Arbitrator in accordance with the consent order and that Father’s motions had been raised prematurely. The trial court therefore denied Father’s motion objecting to the Parenting Arbitrator’s June 27, 2006 decision and dismissed his petition to reduce child support.

The Parenting Arbitrator conducted additional arbitration hearings. On August 15, 2007, she submitted her findings of fact and conclusions of law to the trial court and to the parties. These findings addressed child support, the son’s education, both children’s uninsured medical expenses, transportation of the children between Mother and Father, and the parties’ attorneys fees.

Father filed in the trial court a notice of objections to the Parenting Arbitrator’s decision. On August 31, 2007, the trial court entered an order incorporating the Parenting Arbitrator’s decision. In response to Father’s motion seeking a ruling on his objections, Mother asserted that the parties had agreed to binding arbitration governed by the Tennessee Uniform Arbitration Act (“TUAA”) and that the TUAA permits modification of an arbitrator’s decision only under limited circumstances. See TenmCode Ann. §§ 29-5-812 to -814 (2000).

On December 7, 2007, the trial court conducted a hearing on Father’s objections. The trial court determined that it was not prohibited by the TUAA from modifying the Parenting Arbitrator’s ruling. The trial court then modified the Parenting Arbitrator’s ruling as to three issues and expressly reserved five issues for an evidentiary hearing in addition to any other issues not completely adjudicated.

Mother appealed the trial court’s order modifying the arbitrator’s ruling. She based her appeal on section 29-5-319 of the TUAA, which states that “[a]n appeal may be taken from: ... [a]n order modifying or correcting an [arbitrator’s] award.” TenmCode Ann. § 29-5-319(a)(4) (2000). The Court of Appeals affirmed the trial court’s modification of the Parenting Arbitrator’s ruling holding that the parties had agreed to non-binding arbitration governed by Tennessee Supreme Court Rule 31.

II. Analysis

On appeal, the parties do not dispute that the Parenting Arbitrator’s decision may be appealed to the trial court. The issue before us therefore concerns only the scope of the trial court’s review. Mother asserts that the trial court should apply the narrow scope of review provided in the TUAA, which governs binding arbitration. Father, on the other hand, asserts that the trial court should apply the broader scope of review included in the consent order. Before addressing this issue, we will first determine whether the consent order entered by the trial court provided for nonbinding arbitration pursuant to Tennessee Supreme Court Rule 31, as held by the Court of Appeals.

A Tennessee Supreme Court Rule 31

Rule 31 sets forth the procedures for court-annexed alternative dispute resolution, including non-binding arbitration. Tenn. Sup.Ct. R. 31. The goal of court-annexed alternative dispute resolution is to assist the parties in reaching voluntary settlements. See Tenn. Sup.Ct. R. 31 app. A, § 10. To this end, Rule 31 defines “Non-Binding Arbitration” as “a process in which a neutral person ... considers the facts and arguments presented by the parties and renders a decision which is non-binding.” Tenn. Sup.Ct. R. 31 § 2(1). Pursuant to Rule 31, non-binding arbitration is initiated by the trial court’s entry of an Order of Reference, which is permissible only with the parties’ consent. Tenn. Sup.Ct. R. 31 § 3(a), (d).

Viewed in its entirety, we conclude that the consent order in this case does not invoke the provisions of Rule 31 related to non-binding arbitration. The parties’ agreement vests decision-making authority in the Parenting Arbitrator and provides for an appeal procedure to the trial court. This procedure is foreign to Rule 31. Rule 31, section 21 provides that neutrals serving in non-binding arbitrations are subject to Rule 31, Appendix A, “Standards of Conduct for Rule 31 Neutrals.” In a subsection entitled “Neutral’s Role,” Appendix A states that “[i]n dispute resolution proceedings, decision-making authority rests with the parties. The role of the Neutral includes but is not limited to assisting the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping the parties reach voluntary agreements.” Tenn. Sup.Ct. R. 31 app. A, § 1(b). Accordingly, in non-binding arbitration the parties may accept the result of the arbitration, thereby reaching a voluntary agreement, or they may disagree with the result of the arbitration and return to the court for a resolution in that forum. Rule 31 does not vest decision-making authority in the arbitrator. Because the arbitrator’s award is not binding, Rule 31 does not provide for appeal from the arbitrator’s decision.

Our conclusion that the consent order is not governed by Rule 31 is reinforced by other provisions of Rule 31. For example, neutrals must “preserve and maintain the confidentiality of all information” obtained during the arbitration proceedings and may not divulge that information without the parties’ consent. Tenn. Sup.Ct. R. 31 § 10(d). Also, Rule 31 makes it abundantly clear that information concerning the arbitration proceedings is inadmissible in the trial court. Neutrals filing a final report with the trial court pursuant to Rule 31 must state “only: (i) which parties appeared and participated in the [proceedings]; (ii) whether the case was completely or partially settled; and (iii) whether the Rule 31 Neutral requests that the costs of the Neutral’s services be charged as court costs.” Tenn. Sup.Ct. R. 31 § 5(a). Rule 31 further provides that “[e]vidence of conduct or statements made in the course of [the ADR proceedings] shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408.” Tenn. Sup.Ct. R. 31 § 7. Contrary to these provisions, the parties’ consent order emphasizes that “[tjhere is no confidentiality as to any evidence presented ” during the arbitration hearings and requires the Parenting Arbitrator to submit detailed findings and conclusions to the trial court.

In short, the role of the Parenting Arbitrator in this case, as described in the parties’ consent order and in actuality, is inconsistent with the role of a neutral in a non-binding arbitration conducted pursuant to Rule 31.

We also put to rest the notion that Rule 31 governs not just non-binding arbitration, but some form of binding arbitration as well. In Team Design v. Gottlieb, 104 S.W.3d 512, 528 (Tenn.Ct.App.2002), the Court of Appeals stated that “the 2001 amendments [to Rule 31] appear to permit the parties to agree that an arbitrator’s award in a ‘non-binding arbitration’ proceeding will be ‘final and binding,’ ” relying on Appendix B to Rule 31 in support of its conclusion. Id. at 528 & n. 47. Initially, we observe that no provision of Rule 31 provides for binding arbitration. Section 2(1), however, defines “Non-Binding Arbitration” as “a process in which a neutral person or a panel ... considers the facts and arguments presented by the parties and renders a decision which is non-binding as set forth in sections 14 and 21 herein.” Tenn. Sup.Ct. R. 31 § 2(1). Section 21 describes Appendix B as a “form order for use by parties and courts in fashioning their own orders for NonBinding Arbitration.” Id. at § 21.

We acknowledge that paragraph 15 of Appendix B permits parties to “stipulate[] in writing that the award shall be final and binding.” This provision should not be interpreted to alter the substance and intent of Rule 31. “This Court’s role in construing statutes is to give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000). The traditional rules of statutory construction also apply to the construction of the Rules of the Tennessee Supreme Court. See Doe v. Bd. of Prof'l Responsibility of Supreme Ct. of Tenn., 104 S.W.3d 465, 469 (Tenn.2003).

Consistent with the substantive provisions of Rule 31, the language in Appendix B simply permits parties to agree to make binding the result of their non-binding arbitration. Paragraphs 15 and 17 support this conclusion. The arbitrator may issue an award at which time the parties may stipulate that the award “shall be final and binding.” Tenn. Sup.Ct. R. 31 app. B, ¶ 15. Then, “[u]pon stipulation of the parties, the clerk shall, in accordance with Rule 58, Tennessee Rules of Civil Procedure, enter the award as the judgment of the court.” Tenn. Sup.Ct. R. 31 app. B, ¶ 17 (footnote added). The agreement of the parties thereby becomes a consent order with “the same force and effect as a judgment of the court in a civil action, except that the judgment shall not be subject to review in any other court by appeal or otherwise.” Tenn. Sup.Ct. R. 31 app. B, ¶ 17. This interpretation is consistent with Rule 31 and does not give undue emphasis to Appendix B. To the extent that Team Design v. Gottlieb suggests otherwise, it is overruled.

B. Tennessee Uniform Arbitration Act

Having determined that the parties’ consent order was not governed by Rule 31, we turn to Mother’s contention that the TUAA applies to the consent order in this case. In Tennessee, parties may agree to binding arbitration of their disputes even after legal proceedings have been commenced, as long as the substance of their dispute is properly amenable to binding arbitration and does not require adjudication by a court. In such circumstances, the arbitration proceeding is not governed by Tennessee Supreme Court Rule 31 and instead is governed by the TUAA. See TenmCode Ann. §§ 29-5-301 to -320. The TUAA provides that

(a) A written agreement to submit any existing controversy to arbitration ... is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the revocation of any contract. ...
(b) The making of an agreement described in this section providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this part and to enter judgment on an award thereunder.

Tenn.Code Ann. § 29-5-302. We have held that “[a] judgment by consent is in substance a contract of record made by the parties and approved by the court.” Third Nat. Bank v. Scribner, 212 Tenn. 400, 370 S.W.2d 482, 486 (1963). We therefore conclude that Mother and Father’s agreement to arbitrate embodied in the consent order falls within the scope of the TUAA. See Pugh’s Lawn Landscape, Co. v. Jaycon Dev. Corp., 320 S.W.3d 252, 256 (Tenn.2010).

The grounds on which a trial court may vacate, modify, or correct an arbitration award under the TUAA are limited. See TenmCode Ann. §§ 29-5-312 to -314; see also Pugh’s, 320 S.W.3d at 258 & n. 5; Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d 445, 448 (Tenn.1996).

The scope of the trial court’s review as included in the consent order is much broader than the trial court’s review under the TUAA. Specifically, the consent order states that “[i]n the event of an appeal, the decision of the arbitrator shall be binding pending the resolution of the matter by the Trial Court, and said decision shall carry with it a presumption of correctness.” Thus, it appears that Mother and Father attempted to enter into binding arbitration while preserving their right to appeal to the trial court and expanding the trial court’s scope of judicial review.

We faced a similar situation in Pugh’s Lawn Landscape Co. v. Jaycon Development Corp., 320 S.W.3d at 255. In Pugh’s, as in this case, the parties agreed to arbitrate their dispute by entering into a consent order that provided for a broader scope of judicial review than is contemplated under the TUAA. We take this opportunity to reaffirm our holding in Pugh’s that the judicial review of an arbitrator’s award is confined to the grounds enumerated in the TUAA. Id. at 254. We therefore invalidate the provision in the consent order embodying the agreement to arbitrate that purports to expand the trial court’s scope of judicial review.

Having held that a provision in the agreement to arbitrate is invalid, we now must determine whether to reform or rescind the agreement to arbitrate. If we reform the agreement, our review would occur pursuant to the narrow review provisions of the TUAA. If we rescind the agreement, we would remand the case to the trial court to adjudicate the merits of the parties’ dispute. Applying traditional contract principles in Pugh’s, we rescinded the agreement on the basis that the provision authorizing expanded judicial review was material to the parties’ agreement and that its failure constituted a mutual mistake that was sufficient to defeat the contract. Id. at 255. Our analysis in Pugh’s applies with equal force in this case. As we explained,

a consent order cannot be set aside unless entered through fraud or mistake. ... [A] “mistake” exists in a legal sense when a person, acting on an erroneous conviction of law or fact, executes an instrument that he or she would not have executed but for the erroneous conviction. A court may not rescind a contract for mistake unless the mistake is innocent, mutual, and material to the transaction and unless the complainant shows an injury.

Id. at 261 (citations omitted).

It is clear from the language of the consent order in this case that both parties agreed in good faith to preserve their right to appeal to the trial court and to expand the trial court’s scope of judicial review. Thus, the mistake was mutual and innocent. Unlike the consent order in Pugh’s, however, the consent order in this case does not describe the provision for judicial review as material consideration for the agreement to arbitrate. Nonetheless, the provision for expanded judicial review embodies a basic assumption on which the agreement to arbitrate was based and as such is material. See Restatement (Second) of Contracts § 152(1) (1981). Likewise, the complainant, Father, has shown an injury in that his right to appeal is substantially limited by the failure of the consent order’s judicial review provision. We therefore rescind the parties’ agreement and hold that the failure of the judicial review provision in the parties’ consent order renders their agreement to arbitrate invalid.

C. Arbitration of Parenting Issues

Although the above analysis is disposi-tive of the present appeal, we recognize that our holding will necessitate additional proceedings on remand. In the interest of judicial economy and in the exercise of our supervisory role, we take this opportunity to address the question on which we requested briefing and argument when granting Mother’s application for permission to appeal: whether Tennessee law permits parties to submit to arbitration issues that implicate the trial court’s duty to ensure that the best interests of children are protected. This issue presents a question of law, which we review de novo. See In re Sidney J., 313 S.W.3d 772, 774 (Tenn.2010).

Tennessee statutes, taken together, impose a duty on trial courts to protect the best interests of children. The general custody provisions provide that “the court may ... award the care, custody and control of ... children ... as the welfare and interest of the ... children may demand” and that “the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child.” Tenn.Code Ann. § 36 — 6—101(a)(1), (a)(2)(A)® (2005 & Supp.2009). Furthermore, “in any ... proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child.” Tenn.Code Ann. § 36-6-106(a) (Supp.2009). With respect to parenting plans, like the one at issue in this case, the General Assembly has stated that “the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities.” Tenn.Code Ann. § 36-6-401(a) (2005).

This statutory duty comports with the longstanding notion that the state stands in parens patriae of the minor children within its borders. As early as 1918, this Court stated, in the context of habeas corpus proceedings, that the state has a right “paramount to any parental or other claim, to dispose of such children as their best interests require. The legal rights of a parent are very gravely considered, but are not enforced to the disadvantage of the child.” State v. West, 139 Tenn. 522, 201 S.W. 743, 744 (1918).

Nonetheless, relying on our decision in Hawk v. Hawk, 855 S.W.2d 573 (Tenn.1993), Mother argues that, absent a showing of substantial harm, divorced parents have a fundamental right to submit disputes concerning children to final and binding arbitration. Mother’s rebanee on Hawk is misplaced. Although we held in Hawk that the state lacks justification to interfere with the fundamental rights of parents in an intact marriage to raise their children absent a showing of harm to the child, id. at 582, we also held that harm to a child is implicit in a divorce proceeding. Id. at 580; see Tenn.Code Ann. § 36-6-401(a) (recognizing “the detrimental effect of divorce on many children.”); Lee v. Lee, 66 S.W.3d 837, 847 (Tenn.Ct.App.2001) (identifying divorce as “one circumstance that ‘invites, and indeed requires, governmental intervention’ into the parents’ constitutionally protected fundamental liberty interest in the care and custody of their children”).

Contrary to Mother’s argument, there is nothing in Tennessee’s statutes or the law of this Court to support the conclusion that by agreeing to arbitrate, parties may relieve the trial court of its duty to ensure that disputes between parents are resolved in the best interests of the children. Rather, it is well established that parents cannot bind the court with an agreement affecting the best interest of their children. We held in Berryhill v. Rhodes, for example, that parents may not enter into private agreements that circumvent statutory child-support obligations. 21 S.W.3d 188, 192 (Tenn.2000). It follows that parents cannot bind the court by submitting child-related issues to an arbitrator. See Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793, 798 (1982) (“ ‘Just as parents cannot by agreement deprive the courts of their duty to promote the best interests of their children, they cannot do so by arbitration.’ ”) (quoting Kovacs v. Kovacs, 98 Md.App. 289, 633 A.2d 425, 431 (1993)); Kelm v. Kelm, 92 Ohio St.3d 223, 749 N.E.2d 299, 303 (2001) (“[I]f parents cannot bind the court by an agreement affecting the interests of their children, they cannot bind the court by agreeing to let someone else, an arbitrator, make such a decision for them.”).

Furthermore, as we explained in Pugh’s, the limited review procedures that accompany binding arbitration are justified by the need to promote finality of arbitration awards. Pugh’s, 320 S.W.3d at 257. Although an important factor, the need to promote finality is not the prevailing concern in resolving child-related matters. Rather, the prevailing concern is ensuring that the best interests of the child are protected. See Tenn.Code Ann. § 36-6-106(a); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn.2002) (holding that child custody awards are always subject to modification to ensure that the best interests of the child are protected).

We therefore hold that parties may not submit parenting issues to binding arbitration. Parties may submit such disputes to non-binding arbitration. If the parties agree with the result produced, the parties must submit the agreement to the trial court for a determination of the children’s best interests.

III. Conclusion

For the reasons articulated above, we hold that the provision in the parties’ consent order authorizing judicial review is invalid and that its invalidity is a mutual mistake justifying rescission of the parties’ agreement to arbitrate. We further hold that parenting issues may not be submitted to binding arbitration in Tennessee. If the parties reach an agreement concerning parenting issues through the use of nonbinding arbitration under Rule 31, such agreement must be submitted to the trial court for a determination of the children’s best interests. We therefore reverse the judgment of the Court of Appeals, vacate the judgment of the trial court, and remand the case to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed equally between the appellant, Elizabeth Sams Tuetken, and the appellee, Lance Edward Tuetken, for which execution may issue if necessary.

      . The consent order reserved to the trial court a determination of the contempt motions and listed the following decisions as included in the authority of the Parenting Arbitrator:

        a. Interpreting, implementing, ordering and changing parenting times, terms or conditions, including but not limited to changes in Primary Residential Parenting status;
      b. Interpreting, implementing, ordering and changing telephone or correspondence contact;
      c. Interpreting, implementing, ordering and changing orders regarding exchange and/or transportation of the child, including specific time, place and cost of exchange;
      d. Interpreting, implementing, ordering and changing education, daycare, and/or extra-curricular activities for the child;
      e. Making orders more specific so as to avoid violation of Court orders;
      f. Interpreting, implementing, ordering or changing the times for religious observances and religious training for the child, if any;
      g. Determining and ordering the appropriate medical, mental health, and counseling treatment (including psychotherapy, substance abuse counseling, domestic violence counseling, parenting, or anger management classes) or therapy;
      h. Ordering psychological testing of either or both parents or the minor children;
      i. Interpreting, implementing, ordering and changing child support and any other support required for the children;
      j. Any other issue of any nature, with the exception of contempt of court, which shall remain under the sole control of the Court.

        . This section provides a limited exception to the rule that a final judgment adjudicating all of the claims, rights, and liabilities of all of the parties is required before an appeal. See Tenn. R.App. P. 3(a); In re Estate of Ridley, 270 S.W.3d 37, 41 (Tenn.2008). Mother also filed a Tennessee Rule of Appellate Procedure 9 interlocutory appeal, which the Court of Appeals denied.

      . In addition to non-binding arbitration, the trial court may order the parties, with their consent, to participate in "Mini-Trial[s], Summary Jury Trial[s], or other appropriate alternative dispute resolution proceedings.” Tenn. Sup.Ct. R. 31 § 3(d). With or without the parties' consent, the trial court may order the parties to participate in a Rule 31 judicial settlement conference or mediation. Tenn. Sup.Ct. R. 31 § 3(b).

      . Section 14, entitled "Rule 31 Neutrals in Rule 31 Non-Binding Arbitration," provides
      (a) The Parties may select any lawyer in good standing to act as an arbitrator in a non-binding arbitration.
      (b) Where the court, pursuant to Section 4, appoints a Rule 31 Neutral to act as an arbitrator in a general civil case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years.
      (c) Where the court, pursuant to Section 4, appoints a Rule 31 Neutral to act as an arbitrator in a family case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years, during which time a substantial portion of the lawyer’s practice shall have been family cases.
      Section 21, entitled "Non-Binding Arbitration," provides in part that "[tjrial courts, with the consent of the parties, are authorized to order Non-Binding Arbitration.”

      . Tennessee Rule of Civil Procedure 58 provides, in pertinent part, as follows:
      Entry of a judgment or an order of final disposition is effective when a judgment containing one of the following is marked on the face by the clerk as filed for entry:
      (1) the signatures of the judge and all parties or counsel, or
      (2) the signatures of the judge and one party or counsel with a certificate of counsel that a copy of the proposed order has been served on all other parties or counsel, or
      (3) the signature of the judge and a certificate of the clerk that a copy has been served on all other parties or counsel.

      . Three statutes describe the judicial review that a court must apply when asked to enforce an arbitration award pursuant to the TUAA. First, "the court shall confirm an award, unless, within the time limits hereinafter imposed, grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in §§ 29-5-313 and 29-5-314." Tenn. Code Ann. § 29-5-312. Second, "the court shall vacate an award” when:
      (1) The award was procured by corruption, fraud or other undue means;
      (2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
      (3) The arbitrators exceeded their powers;
      (4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of § 29-5-306, as to prejudice substantially the rights of a party; or
      (5) There was no arbitration agreement and the issue was not adversely determined in proceedings under § 29-5-303 and the party did not participate in the arbitration hearing without raising the objection. The fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
      (b) An application under this section shall be made within ninety (90) days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known.
      Tenn.Code Ann. § 29-5-313(a) — (b). Third, "the court shall modify or correct the award” if an application is "made within ninety (90) days after delivery of a copy of the award to the applicant,” and
      (1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
      (2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
      (3) The award is imperfect in a matter of form, not affecting the merits of the controversy.
      (b) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.
      (c) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.
      Tenn.Code Ann. § 29-5-314.

      . The Restatement (Second) of Contracts § 152(1) provides that
      [w]here a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he [or she] bears the risk of the mistake under the rule stated in § 154 [When a Party Bears the Risk of a Mistake].

      . Other provisions implicate the trial court's duty to ensure that the best interests of children are protected. See e.g., Tenn.Code Ann. § 36-l-101(a)(3) (2005) (stating that one purpose of Tennessee’s adoption statutes is to ensure that “the best interests of children in the adoptive process are protected”); Tenn. Code Ann. § 36-6-306(c) (2005 & Supp.2009) (stating that after a determination of substantial harm has been made, “the court shall then determine whether grandparent visitation would be in the best interests of the child”).

      . Other jurisdictions have held that binding arbitration of parenting issues deprives courts of their obligation to ensure that those issues are resolved in the best interests of the children. Nashid v. Andrawis, 83 Conn.App. 115, 847 A.2d 1098, 1102 (2004) (concluding that the submission of child-related matters to an attorney for binding arbitration was an improper delegation of judicial authority and plain error); Toiberman v. Tisera, 998 So.2d 4, 9 (Fla.Dist.Ct.App.2008) (reversing the trial court's delegation of its judicial authority to an arbitrator to decide matters relating to child custody, visitation, or child support as mandated by Florida statute); Glauber v. Glauber, 192 A.D.2d 94, 600 N.Y.S.2d 740, 743 (N.Y.App.Div.1993) (“The court's traditional power to protect the interests of children cannot yield to the expectation of finality of arbitration awards.”); Crutchley, 293 S.E.2d at 798; Kelm, 749 N.E.2d at 301-03.


author: SHARON G. LEE, J.,

text:
    Candace MULLINS v. STATE of Tennessee.
    Supreme Court of Tennessee, at Nashville.
    June 2, 2010 Session Heard at Cookeville.

    Sept. 17, 2010.

      Phillip L. Davidson, Nashville, Tennessee, for the appellant, Candace Mullins.
    Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and P. Robin Dixon, Jr., Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

      . Oral argument was heard in this case on June 2, 2010, in Cookeville, Putnam County, Tennessee, as part of this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

   OPINION

SHARON G. LEE, J.,

delivered the opinion of the Court,

in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

The issue presented in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim against the State of Tennessee arising from the death of a young child who had been removed from his mother’s home and placed in the custody of the mother’s aunt by order of the juvenile court. The child and his two brothers were removed from their mother’s care because of her use of cocaine. At the mother’s request and after an investigation, the Department of Children’s Services recommended to the juvenile court that custody of the children be awarded to the mother’s aunt. Less than a month after the court entered the order of custody, the mother reported concerns about the children’s well-being to the Department. A case worker investigated the aunt’s home and found no basis to remove the children. Ten days later, one of the children, a five-year-old boy, died from extensive injuries allegedly inflicted by the aunt’s nineteen-year-old daughter who lived in the home. The child’s mother filed a wrongful death claim against the State alleging negligence on the part of the Department. The Claims Commissioner denied the claim, finding that the Claims Commission did not have subject matter jurisdiction to hear the claim pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E) (1999 & Supp.2009) and that, in any event, the mother had failed to prove negligence by the Department. We hold that the Claims Commission did not have subject matter jurisdiction to hear the claim because the child was not in the care, custody, and control of the State.

I. Factual and Procedural Background

This case arises from the death of five-year-old Carlyle Mullins, the son of Candace Mullins. Carlyle and his two brothers were removed from their mother’s care after the Tennessee Department of Children’s Services (“DCS” or “the Department”) investigated a referral that the mother and her newborn son had tested positive for cocaine. After the children were removed from their mother’s home, DCS conducted a team decision meeting to consider temporary placement of the children. Among those present at the April 19, 2005, meeting were Ms. Mullins; Loli-tha Crook and her husband; Mrs. Crook’s nineteen-year-old daughter, Latara Williams; the father of one of Carlyle’s brothers; and several DCS employees, including the case manager, Stephanie Hall. At this meeting, Ms. Mullins requested that custody of her sons be placed with her aunt, Mrs. Crook. No one at this meeting raised any questions or concerns about the suitability of Mrs. Crook or her daughter, Ms. Williams.

Before DCS made its recommendation to the Juvenile Court for Davidson County regarding placement of the children, Sue Burfield, a DCS supervising case manager, performed a criminal background check, sex offender registry review, and search of the pertinent Tennessee child and family computer database systems to ensure that placement with the Crook family was appropriate. Additionally, a representative or representatives of Child Protective Services went to the Crook home to investigate its suitability. After completing these procedures, DCS concurred with Ms. Mullins’ request and recommended to the juvenile court that the children be placed in the temporary custody of Mrs. Crook.

On April 20, 2005, the juvenile court awarded temporary custody to Mrs. Crook of the three children, ages six, five, and one month. After the court placed the children with Mrs. Crook, DCS closed its case files on the children. Ms. Burfield testified that when DCS closes a case and no longer retains custody of a minor who has been placed with a family member by juvenile court order, DCS has no duty to supervise the home environment of such a placement.

Less than a month later on May 17, 2005, Ms. Mullins called Ms. Hall with multiple concerns about the care and home environment of the children. Ms. Mullins reported that Mrs. Crook was away from the home as many as twelve hours per day and that Ms. Williams was caring for the children in Mrs. Crook’s absence. Ms. Mullins alleged that Ms. Williams was mentally incapable of taking care of three young children, that she had been in special education classes, and that she had once set fire to the Crooks’ kitchen. Additionally, Ms. Mullins reported that Carlyle had suffered a burn injury at the Crook home and that she had been unable to determine the cause of the burn. Ms. Hall instructed Ms. Mullins to make an official referral to DCS, which Ms. Mullins promptly did. Upon receiving the referral, Ms. Hall went to the Crook home the same day to investigate Ms. Mullins’ concerns. When Ms. Hall arrived at the home, she interviewed Carlyle separately and observed his body from the waist up. She saw scars that she described as “very old” and “very, very faint” and a mark on his back that looked like a bite mark. She also observed a burn mark on Carlyle’s arm. When Ms. Hall asked Carlyle how he got the burn, he told her that he had accidentally bumped into a hot iron in his closet. Ms. Hall looked in the closet and found an iron on a shelf at the level of the burn mark.

As to the scars and bite marks on Carlyle, Ms. Hall testified at trial that she recalled asking Carlyle how he got the scars and bite marks, but admitted that she made no documentation or evidence of this inquiry in any report. She did not testify as to Carlyle’s response to her inquiry. She did not take any photographs or make any written notations of the marks on his body. Ms. Hall testified that Mrs. Crook told her that the marks, other than the burn, were present on Carlyle’s body when he arrived at her house. Ms. Hall was aware that DCS had received an earlier referral in 2002 regarding Carlyle and his brother that involved cigarette burns, bruises, and bites, based on information available through the State’s TennKids computer database.

Ms. Hall told DOS’s Internal Affairs Division that Carlyle answered all of her questions and did not seem to be fearful during her investigative visit. She observed that Carlyle’s demeanor was “happy,” that “he walked fine,” and that there was no immediate danger to Carlyle during her visit. Ms. Hall made a basic visual inspection of Carlyle’s younger brother but not his older brother. She did not separately interview either Carlyle’s older brother or Ms. Williams.

Ms. Hall testified that when Ms. Mullins called in the referral, she did not allege that Ms. Williams was abusing Carlyle. During the investigative visit, Mrs. Crook denied to Ms. Hall that Ms. Williams had been in special education classes and asserted that Ms. Williams was a CPR-eerti-fied lifeguard and that the kitchen fire had been an accident. Ms. Hall admitted that Ms. Williams appeared to her to be “mentally delayed.”

Based on her observations during the investigative visit and Carlyle’s non-disclosure of abuse, Ms. Hall concluded that the allegations regarding the burn were unfounded and that there was no evidence that Carlyle was being neglected or abused or in immediate risk of harm. DCS closed the investigation on May 17, 2005.

Unfortunately, nine days later on May 26, 2005, Carlyle was admitted to Vanderbilt Children’s Hospital suffering from serious injuries including a subdural hemorrhage with brain edema. He died the next day. The medical examiner determined the cause of death to be inflicted head trauma and the manner of death to be homicide. Ms. Williams was subsequently arrested and charged with first degree murder and aggravated child abuse.

Ms. Mullins filed a claim in the Tennessee Claims Commission against the State of Tennessee alleging that DCS had been negligent in its care, custody, and control of Carlyle by: (1) failing to conduct an adequate investigation of the Crooks’ home environment before recommending his placement there; (2) failing to maintain supervisory control over Mrs. Crook and her home with respect to Carlyle’s care; (3) failing to properly ensure Carlyle was not subjected to abuse by parties living in the Crook home; (4) failing to protect Carlyle by removing him from the Crook home when DCS was notified of possible danger and abuse by Ms. Mullins’ referral; and (5) failing to adequately investigate the cause of Carlyle’s burn injury. Ms. Mullins asserted that if Ms. Hall had conducted an adequate investigation of the referral allegations, Carlyle would have been removed from the Crook home and protected from abuse.

Following a plenary trial, the Claims Commissioner dismissed the claim. The Commissioner ruled that Ms. Mullins had failed to prove that DCS had acted negligently in recommending to the juvenile court that temporary custody of Carlyle be awarded to Mrs. Crook; that the Claims Commission lacked jurisdiction over the claim because Carlyle was not in the care, custody, and control of DCS at the time of the alleged failure to properly investigate the referral of abuse and remove the child from the home; and that even if the Claims Commission had subject matter jurisdiction, Ms. Mullins had failed to prove that the alleged negligence of DCS was the cause of Carlyle’s death.

Ms. Mullins appealed. The Court of Appeals ruled that the Claims Commission had jurisdiction to hear Ms. Mullins’ claim relative to Carlyle’s placement with Mrs. Crook, because at that time, DCS had custody and control of Carlyle and concurrent responsibility for his care, but that DCS was entitled to quasi-judicial immunity regarding its investigation of the suitability of Mrs. Crook and her home and its recommendation to the juvenile court. Mullins v. State, No. M2008-01674-COA-R3-CV, 2009 WL 1372209, at *9 (Tenn.Ct.App. May 15, 2009). The Court of Appeals further held that the Claims Commission did not have jurisdiction to hear claims alleging negligence by DCS that occurred after the juvenile court’s order granting custody to Mrs. Crook and the placement of the children in her home, because at those times DCS did not have care, custody, and control of the children. We granted Ms. Mullins’ application for permission to appeal.

II. Analysis

The issue we address in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim for negligence against the State which arose after a child who had been removed from his mother’s care was placed in the temporary custody of a third party by court order. The jurisdiction of the Claims Commission is a question of law that we review de novo with no presumption of correctness. Stewart v. State, 33 S.W.3d 785, 791 (Tenn.2000); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.2000).

It has long been well-established that the State of Tennessee, as a sovereign, is immune from lawsuits “ ‘except as it consents to be sued.’ ” Stewart, 33 S.W.3d at 790 (quoting Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 779 (1965)). The doctrine of sovereign immunity ‘“has been a part of the common law of Tennessee for more than a century.’ ” Id. (quoting Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn.1997)). The rule of sovereignty is both constitutional and statutory. Article I, section 17 of the Tennessee Constitution provides that “[sjuits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” Tennessee Code Annotated section 20-13-102(a) (2009) provides that

[n]o court in the state shall have any power, jurisdiction or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds or property, and all such suits shall be dismissed as to the state....

Exercising its constitutional prerogative to allow suits against the State, the General Assembly in 1984 enacted a comprehensive procedure for the filing, prosecution, and disposition of monetary claims against the State. As a part of this statutory scheme, the Tennessee Claims Commission, consisting of one commissioner from each grand division of the State, was created to hear and determine claims against the State. See Act of May 24, 1984, ch. 972, §§ 1, 5(a), 1984 Tenn. Pub. Acts 1026, 1027-28 (codified at Tenn.Code Ann. § 9-8-301(a), -305(1) (Supp.1984)).

The Claims Commission and its commissioners have exclusive jurisdiction to adjudicate all monetary claims against the State which fall within certain specified categories as defined by the statute. Id. §§ 5(a), 8(a), 1984 Tenn. Pub. Acts at 1028-30 (codified at Tenn.Code Ann. §§ 9-8-305(1), -307(a)); Conley v. State, 141 S.W.3d 591, 597 (Tenn.2004); see also Tenn.Code Ann. § 20-13-102(a). The legislature did not remove immunity for all claims against the State, but only those claims specified in section 9-8-307(a). It follows then that the Claims Commission lacks subject matter jurisdiction and has no authority to hear any claims that fall outside the categories enumerated in section 9-8-307(a). Stewart, 33 S.W.3d at 790.

The legislature made its intent clear in the 1985 amendment to the Act by stating: “[i]t is the intent of the general assembly that the jurisdiction of the claims commission be liberally construed to implement the remedial purposes of this legislation.” Act of March 25, 1985, ch. 105, § 1, 1985 Tenn. Pub. Acts 154,154 (codified at Tenn. Code Ann. § 9-S-307(a) (Supp.1985)); see also Hembree v. State, 925 S.W.2d 513, 516 (Tenn.1996). This is contrary to the general rule that statutes permitting lawsuits against the State “are in derogation of the state’s inherent exemption from suit and must be strictly construed.” Beare Co. v. Olsen, 711 S.W.2d 603, 605 (Tenn.1986); see State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 860-61 (1937).

In Stewart, we observed that courts should defer to the expressed intention of the legislature that a waiver of sovereign immunity be liberally construed “in cases where the statutory language legitimately admits of various interpretations,” but also cautioned that

[a] policy of liberal construction of statutes, however, only requires this Court to give “the most favorable view in support of the petitioner’s claim,” Brady v. Reed, 186 Tenn. 556, 563, 212 S.W.2d 378, 381 (1948), and such a policy “does not authorize the amendment, alteration or extension of its provisions beyond [the statute’s] obvious meaning.” Pollard v. Knox County, 886 S.W.2d 759, 760 (Tenn.1994). Moreover, “[w]here a right of action is dependent upon the provisions of a statute ... we are not privileged to create such a right under the guise of a liberal interpretation of it.” Hamby v. McDaniel, 559 S.W.2d 774, 777 (Tenn.1977).

33 S.W.3d at 791 (alterations in original). Similarly, in Northland Insiwance Co., this Court, recognizing “the principle that a waiver of sovereign immunity must be clear and unmistakable,” observed that “[a] liberal construction of an existing category ... is a different proposition than a construction creating a new category.” 33 S.W.3d at 728, 730.

The question before us is whether the claim brought by Ms. Mullins falls within one of the categories set forth in section 9-8-307(a). The categories which the Claims Commission or each commissioner has exclusive jurisdiction to hear are:

(A) The negligent operation or maintenance of any motor vehicle or any other land, air, or sea conveyance ...;
(B) Nuisances created or maintained;
(C) Negligently created or maintained dangerous conditions on state controlled real property ...;
(D) Legal or medical malpractice by a state employee ...;
(E) Negligent care, custody and control of persons;
(F) Negligent care, custody or control of personal property;
(G) Negligent care, custody or control of animals ...;
(H) Negligent construction of state sidewalks and buildings;
(I) Negligence in planning and programming for, inspection of, design of, preparation of plans for, approval of plans for, and construction of, public roads, streets, highways, or bridges and similar structures, and negligence in maintenance of highways, and bridges and similar structures ...;
(J) Dangerous conditions on state maintained highways ...;
(K) Workers’ compensation claims by state employees ...;
(L) Actions for breach of a written contract between the claimant and the state
(M) Negligent operation of machinery or equipment;
(N) Negligent deprivation of statutory rights created under Tennessee law, except for actions arising out of claims over which the civil service commission has jurisdiction ...;
(O) Claims for the recovery of taxes collected or administered by the state ...;
(P) Claims for the loss, damage or destruction of the personal property of state employees based on § 9-8-111;
(Q)(i) Claims for injuries incurred by persons where such injury occurred while the person was a passenger in a motor vehicle operated by a state employee while such employee was acting within the scope of employment....
(R) Claims for libel and/or slander ...;
(S)(i) Claims for compensation filed under the Criminal Injuries Compensation Act....
(T) Actions based on § 69-1-201;
(U) Actions based on violations of the requirements- of procurement of commodities or services ...; and
(V) Unconstitutional taking of private property!.]

Tenn.Code Ann. § 9-8-807(a)(l).

Ms. Mullins relies on category (E) of section 9 — S—307(a)(1), which authorizes claims against the State for the “[n]egli-gent care, custody and control of persons.” The State asserts this section is not applicable because DCS did not have care, custody, and control of Carlyle after the juvenile court granted Mrs. Crook temporary custody and placed him under her care and in her home.

From April 20, 2005, until his death, Carlyle was in the legal and physical custody of Mrs. Crook by order of the Davidson County Juvenile Court. The State did not have legal or physical custody of Carlyle when Ms. Hall investigated the allegations of Ms. Mullins’ referral and during the days leading up to the death of the child. The concept of “custody” is closely intertwined with the concepts of responsibility for “care” and “control.” Our legislature has defined “custody” as meaning “the control of actual physical care of the child and includes the right and responsibility to provide for the physical, mental, moral and emotional well-being of the child.” Tenn. Code Ann. § 37-l-102(b)(8) (2005 & Supp. 2009). Furthermore, Tennessee Code Annotated section 37-l-140(a) (2005) provides for the following rights and attendant responsibilities of a legal custodian:

A custodian to whom legal custody has been given by the court under this part has the right to the physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care and the right and duty to provide for the care, protection, training and education, and the physical, mental and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child’s parents or guardian.

Mrs. Crook — not the State of Tennessee— had custody of the child and was responsible for his physical care. Therefore, Ms. Mullins’ claim does not fall within the scope of the literal meaning of the words enacted in section 9-8-307(a)(l)(E), which requires that the conduct complained of arise out of the “[njegligent care, custody and control of persons.” This conclusion, while significant, is nonetheless not entirely determinative, as further discussed below.

This Court has considered and interpreted section 9-8-307(a)(l)(E) on three prior occasions. In Hembree v. State, 925 S.W.2d 513 (Tenn.1996), we held that the Claims Commission had jurisdiction over a claim that the State negligently released a patient from a mental health institution who killed two people and seriously wounded two others following his release. The Hembree Court observed that “[t]he state is responsible for the proper care and control of patients within its mental health facilities” and held that the State’s responsibility extends to the decision to release a mental health patient into the community; such a decision, “if negligently made, may expose the State to liability.” Id. at 517. We emphasized that the patient was clearly within the care, custody, and control of the State when the release decision was made and held that “physical confinement in the literal sense is not a prerequisite under § 9-8-307(a)(l)(E).” Id. at 518.

Four years later, we held in Stewart that the Claims Commission lacked jurisdiction where the claimant alleged that a state highway patrol officer negligently failed to supervise and control county police authorities at a traffic accident and arrest scene, resulting in the claimant being hit by a truck. 33 S.W.3d at 794. We found that the claim did not arise from the care, custody, or control of the county deputies, including the claimant, who was a volunteer deputy. Id. at 792. Following the legislative mandate to liberally construe the jurisdiction of the commission to implement the remedial purposes of the act, we interpreted section 9-8-307(a)(1)(E) in the disjunctive rather than the conjunctive, stating that “it is difficult to conceive that the legislature intended to deny jurisdiction in cases where negligent control of a person by a state employee resulted in injury, even though the injured person was not actually within the care or custody of the state employee.” Id. We concluded that pursuant to section 9-8-307(a)(1)(E) the Claims Commission had jurisdiction to hear a claim against the State where the state employee alleged to be negligent had a “legal duty to control ... irrespective of whether he had actual care and custody ... if he was negligent in the fulfillment of that duty.” Id. Our review of the facts and pertinent authorities in Stewart led us to conclude as a matter of law that the state trooper “neither possessed nor assumed a legal duty to control local police authorities at the arrest scene.” Id. at 794.

Four years after Stewart, in Conley v. State, 141 S.W.3d 591 (Tenn.2004), we determined that the Claims Commission did not have jurisdiction over a claim for negligent administration of pre-admission screening of a nursing home patient, where the patient subsequently attacked and severely injured another resident of the nursing home. We observed that “[ujnlike Hembree, there has been no showing that the State had ‘care, custody or control’ under the facts of this case.” Id. at 599. We further stated in Conley that there was “no assertion that the State’s limited involvement imposed a duty to control the actions of [the attacker] after he was placed in the nursing facility.” Id.

Ms. Mullins argues that based upon the Stewart Court’s interpretation of section 9 — 8—307(a)(1)(E) in the disjunctive, and our recognition that the State may be potentially hable for a state employee’s negligent fulfillment or discharge of a legal duty to control a person, the Claims Commission had jurisdiction. Stewart, however, is unavailing to Ms. Mullins. The State did not have care, custody, or control of Carlyle after the juvenile court awarded custody of him to Mrs. Crook — at this point, Mrs. Crook was the only one who had custody of Carlyle and thus the responsibility and obligation to provide care for him and control over him. The State had no legal duty to control Carlyle once he was no longer in DCS’s custody pursuant to the juvenile court order.

Ms. Mullins argues that DCS was subject to a statutory duty to investigate referrals alleging threats of abuse or danger to a child, and that Ms. Hall assumed a duty to protect Carlyle when she went to the Crook home to investigate the referral. This argument has been made in two previous cases against DCS after our decision in Stewart. In both of these cases, the Court of Appeals correctly held that the Claims Commission did not have jurisdiction of a claim for negligent investigation of a referral for possible child abuse. See Holloway v. State, No. W2005-01520-COA-R3-CV, 2006 WL 265101, at *4 (Tenn.Ct.App. Feb.3, 2006), perm. app. granted (Tenn. Aug. 21, 2006); Draper v. State, No. E2002-02722-COA-R3-CV, 2003 WL 22092544, at *3 (Tenn.Ct.App. Sept.4, 2003). As in the case before us, the plaintiffs in Draper and Holloway alleged that the Claims Commission had jurisdiction to hear their claims because DCS had a duty to take their children into custody and negligently failed to do so. In both instances, however, the Court of Appeals found that DCS’s negligent failure to take a child into custody did not confer jurisdiction under the terms of the statute. Holloway, 2006 WL 265101, at *4; Draper, 2003 WL 22092544, at *2. Holloway and Draper were correctly decided, and, therefore, the Claims Commission properly rejected Ms. Mullins’ assertion of jurisdiction.

Ms. Mullins argues that two statutes create a duty on the part of DCS to provide for the “control” of a child who is the subject of a referral and subsequent investigation. First, Ms. Mullins points to Tennessee Code Annotated section 37-1-406 (2005 & Supp.2009), which requires DCS to “make a thorough investigation promptly after receiving either an oral or written report of harm,” mandates that “[i]f it appears that the immediate safety or well being of a child is endangered, ... or that the facts otherwise warrant, the department shall commence an investigation immediately,” and prescribes the parameters of the required investigation. Secondly, Ms. Mullins relies on Tennessee Code Annotated section 37-1-113(a)(3) (2005), which provides that a DCS social worker may take a child into custody if there are reasonable grounds to believe that the child is neglected, dependent or abused and subject to an immediate threat to the child’s health or safety. See also Tenn.Code Ann. § 37-1-114(a)(2) (2005).

This argument fails because the legislature provided for a waiver of sovereign immunity for “[negligent deprivation of statutory rights created under Tennessee law” in subsection 9-8-307(a)(l)(N) by providing jurisdiction to the Claims Commission only when the claimant proves “that the general assembly expressly conferred a private right of action in favor of the claimant against the state for the state’s violation of the particular statute’s provisions.” Id. The General Assembly has not expressly conferred a private right of action for the State’s alleged violation of the statutory scheme requiring DCS to make a prompt investigation of referrals alleging child abuse or neglect.

In addition and alternatively, Ms. Mullins argues that Ms. Hall voluntarily assumed a duty to control Carlyle by noting Ms. Hall’s testimony that when she arrived at the Crook home it was her responsibility to protect Carlyle Mullins from any condition there that was a danger to his safety; that when she came to the Crook home on the evening of May 17, 2005, she had every intention to protect Carlyle from harm; and that she had the authority with her supervisor’s approval to remove him from the home if she determined that he was in danger. Ms. Hall testified that she did not take steps to remove Carlyle because she did not perceive anything that indicated that he was at immediate risk of harm or subject to child abuse, and because there was no allegation in the referral that Ms. Williams was abusing Carlyle.

We do not agree that, because Ms. Hall had the subjective intent to “protect” Carlyle during her investigation, she assumed a duty of control so as to trigger potential liability of the State for “[negligent care, custody and control of persons.” Tenn. Code Ann. § 9-8-307(a)(l)(E).

In determining whether the General Assembly intended to waive sovereign immunity for a claim against the State of Tennessee by providing jurisdiction to the Claims Commission, our primary focus must remain on the actual words chosen and enacted by the legislature. We are of the opinion that the claim presented here did not arise out of the care, custody, or control of a person by a state employee. The juvenile court placed primary responsibility for Carlyle’s care, custody, and control "with Mrs. Crook, and DCS closed its case file following the juvenile court’s order. Ms. Mullins’ claim is more appropriately characterized as one for negligent investigation, a category the legislature did not include in section 9-8-307. We are not at liberty to “legislate” an entirely new category of claims for which the Claims Commission has jurisdiction under the guise of liberally interpreting the “negligent care, custody and control” provision. See Northland Ins. Co., 33 S.W.3d at 730.

Although the life of Carlyle Mullins was precious and his death was a tragic event, there is no basis for the Claims Commission to exercise its jurisdiction and hear this matter. The State is immune from suit, and none of the statutory exceptions apply to these facts. The legislature — not the judiciary — has the authority to waive sovereign immunity and to amend the statute to allow suit for negligent investigation. We continue to adhere to the principle that “legislation authorizing suits against the state must provide for the state’s consent in ‘plain, clear, and unmistakable’ terms.” Id. at 731 (quoting ' Cook, 106 S.W.2d at 861).

III. Conclusion

We hold that the Tennessee Claims Commission was without jurisdiction to hear this claim against the State because it did not arise out of the negligent care, custody, and control of a person by a state employee. Accordingly, the judgment of the Court of Appeals is affirmed and the case is dismissed. Costs on appeal are assessed to the appellant, Candace Mullins, and her surety, for which execution may issue if necessary.

      . At the time of the children’s removal, Ms. Mullins admitted to using more than a gram of cocaine a week and drinking twenty-two ounces of beer several times a week. The propriety of the children’s removal from their mother's home is not at issue. The record does not include any juvenile court records regarding the removal. We note that Tennessee Code Annotated section 37-1-113(a)(3) (2005) authorizes a child to be taken into custody by a social worker of the department of human services if there are reasonable grounds to believe: (1) that the child is neglected, dependent, or abused; (2) that the child's detention is required because the child is subject to an immediate threat to the child's health or safety to the extent that delay for a hearing would be likely to result in severe or irreparable harm; and (3) that there is no less drastic alternative to removal of the child from the custody of the child's parent available that would reasonably and adequately protect the child's health or safety. See also Tenn.Code Ann. § 37-1-114(2005).

      . The record on appeal does not reveal the outcome of these charges.

      . The issue of the correctness of this ruling has not been raised by Ms. Mullins. Consequently, we express no opinion regarding the correctness of the Court of Appeals' ruling on DCS's quasi-judicial immunity, which is not before us on this appeal. See Tenn. R.App. P. 13(b).

      . The appeal to this Court in Holloway was voluntarily dismissed before it was heard.