author: BARKER, J.,

text:
    Gayle PENLEY, v. HONDA MOTOR COMPANY, LTD., et al.
    Supreme Court of Tennessee, at Jackson.
    Aug. 25, 2000.
    William H. Haltom, Jr., Memphis, TN; Kenneth W. Hooks, Birmingham, AL; and Keith Belt, Birmingham, AL, for appellant, Ms. Gayle Penley.
    R. Dale Bay, Nashville, TN; Susan R. High-McAuley, Nashville, TN; and Marshall T. Cook, Nashville, TN, for appellees, Honda Motor Company, Ltd.; Honda Research & Development Company, Ltd.; American Honda Motor Company, Inc.; Joe’s Cycle Shop, Inc. d/b/a Joe’s Cycle and Marine.
   OPINION

BARKER, J.,

delivered the opinion of the court, in which

ANDERSON, C.J., and DROWOTA, BIRCH, and HOLDER, JJ., joined.

The sole issue in this appeal is whether the ten-year statute of repose codified in the Tennessee Products Liability Act, Tenn.Code Ann. § 29-28-103(a) (1980 <& Supp.1999), is tolled during any period of a plaintiffs mental incompetence. Granting the defendants’ motion for summary judgment, the Chester County Circuit Court ruled that (1) the plaintiffs action was brought more than ten years from the product’s first purchase for use or consumption; and (2) the ten-year statute of repose was not tolled by reason of mental incompetence. The Court of Appeals affirmed the grant of summary judgment, and the plaintiff was granted permission to appeal by this Court. For the reasons given herein, we likewise affirm the grant of summary judgment to the defendants and hold that mental incompetency does not operate to toll the statute of repose contained within the Tennessee Products Liability Act. The judgment of the Court of Appeals is affirmed, and the plaintiffs suit is dismissed.

On June 8, 1996, the plaintiff, Gayle Penley, along with several of her friends, went to the farm of William and Anne Morris to ride four-wheel all-terrain vehicles (ATVs). Because the group did not have enough ATVs for everyone to ride, Anne Morris allowed the plaintiff to borrow her ATV, and the group left to ride along some nearby trails. While riding on one of these trails, the plaintiff started to climb a steep hill, and as she neared the top of the hill, the ATV suddenly rolled over backwards and crushed her. The accident resulted in extensive injuries to the plaintiffs back and chest.

The plaintiff was rushed to a nearby hospital where she remained until her release on June 27, 1996. Upon closer examination, it was discovered that the plaintiff suffered a fracture of the L-l vertebrae and fractures of the fifth, sixth, and seventh ribs on her right side. During her hospitalization, the plaintiff was in extreme pain and required near constant narcotic pain medication. As the plaintiff alleged in her amended complaint, she “was incapacitated and required twenty-four hour supervision and care. She was incapable of working, tending to her personal business, or of taking care of herself.” The plaintiff also stated in an affidavit that she “was often unaware of what was going on around [her], and was periodically disoriented and dizzy.”

On June 6, 1997, the plaintiff filed suit under the Tennessee Products Liability Act (TPLA) in the Circuit Court for Chester County alleging that the ATV involved in the plaintiffs injuries was designed, manufactured, tested, marketed, and sold in a defective or unreasonably dangerous condition. The claims against defendants Honda Motor Company, Ltd., American Honda Motor Company, Inc., Honda Research and Development Company, Ltd., and Joe’s Cycle Shop, Inc., alleged strict liability, negligence, failure to warn, breach of express warranties, and breach of the implied warranties of merchantability and fitness for a particular purpose.

On July 21, 1997, the defendants filed a motion for summary judgment arguing that the plaintiffs claims were barred by the ten-year statute of repose as set forth in Tennessee Code Annotated section 29-28403(a). The defendants alleged that the ATV involved in the plaintiffs accident was first purchased for use or consumption by Ann Morris on May 23, 1987, ten years and thirteen days before the filing of the plaintiffs suit. In response, the plaintiff moved to amend her complaint to allege that the accident rendered her “mentally and physically incapacitated.” The plaintiff then argued that the operation of the TPLA statute of repose was tolled by the legal disability statute, Tenn.Code Ann. § 28-1-106 (1980 & Supp.1999), during the twenty days that she remained mentally incapacitated in the hospital.

Although the circuit court allowed the plaintiff to amend her complaint to allege mental and physical incapacity during her period of hospitalization, it nevertheless granted the defendants’ motion for summary judgment. The plaintiff appealed to the Court of Appeals, which affirmed the trial court’s grant of summary judgment to the defendants and held that the TPLA statute of repose was not tolled by a plaintiffs physical or mental incompetence. The Court of Appeals also held that the absence of a tolling provision for persons of unsound mind did not render the TPLA statute of repose unconstitutional under the Tennessee Constitution.

The plaintiff then requested, and we granted, permission to appeal on the following issue: whether the TPLA ten-year statute of repose is tolled when the plaintiff suffers temporary mental incompetency. For the reasons stated herein, we hold that the TPLA statute of repose is not tolled by the plaintiffs temporary mental incompetency, and we affirm the trial court’s grant of summary judgment to the defendants.

STANDARD OF APPELLATE REVIEW

Summary judgment is appropriate only when the moving party demonstrates that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Tenn.R.Civ.P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). Since our inquiry involves purely a question of law, no presumption of correctness attaches to the lower court’s judgment, and our task is confined to reviewing the record to determine whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assocs. Inc., 15 S.W.3d 83, 88 (Tenn.2000); Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 90-91 (Tenn.1999). Courts should “grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion.” Staples, 15 S.W.3d at 88; see also Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997).

In reviewing the record to determine whether summary judgment requirements have been met, we must view all the evidence in the light most favorable to the non-moving party. Eyring v. Fort Sanders Parkwest Med. Ctr., 991 S.W.2d 230, 236 (Tenn.1999); Hall, 847 S.W.2d at 210-11. Accordingly, for purposes of this review, we will presume that the plaintiff was in fact of “unsound mind” within the definition of Tennessee Code Annotated section 28-1-106 for the twenty days she was hospitalized following her accident.

ANALYSIS

The issue of whether the TPLA ten-year statute of repose is tolled for mental incompetency appears to be one of first impression in Tennessee. Importantly, the parties do not dispute that the TPLA, including the ten-year statute of repose, governs all of the plaintiffs claims or that the plaintiff brought suit more than ten years after the product in question was “first purchased for use or consumption.” Rather, the plaintiffs contention is that the ten-year statute of repose in section 29-28-103(a) is tolled during any period in which the plaintiff is mentally incapacitated.

The current text of the TPLA statute of repose reads in part as follows:

29-28-103. Limitation of actions — Exceptions.--
(a) Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by [sections] 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.
(b) The foregoing limitation of actions shall not apply to any action resulting from exposure to asbestos or to the human implantation of silicone gel breast implants.
(c)(1) Any action against a manufacturer or seller for injury to a person caused by a silicone gel breast implant must be brought within a period not to exceed twenty-five (25) years from the date such product was implanted; provided, that such action must be brought within four (4) years from the date the plaintiff knew or should have known of the injury.

TenmCode Ann. § 29-28-103(a) (c)(1) (1980 & Supp.1999) (emphasis added).

Statutes of repose operate differently than statutes of limitation, primarily because statutes of repose typically begin to run with the happening of some event unrelated to the traditional accrual of the plaintiffs cause of action. See, e.g., Cronin v. Howe, 906 S.W.2d 910, 914 (Tenn.1995); Wyatt v. A-Best Prods. Co., 924 S.W.2d 98, 102 (Tenn.Ct.App.1995). Because a plaintiffs cause of action can be eliminated by a statute of repose even before it accrues, Watts v. Putnam County, 525 S.W.2d 488, 491 (Tenn.1975), statutes of repose have been said to “extinguish both the right and the remedy,” Cronin, 906 S.W.2d at 913. The courts of this state have construed statutes of repose as an absolute time limit within which actions must be brought, id. at 913, and this Court has characterized the statute of repose as “an outer limit or ceiling superimposed upon the existing statute [of limitations].” Harrison v. Schrader, 569 S.W.2d 822, 826 (Tenn.1978). As one court has stated with regard to the application of statutes of repose, “Where the injury occurs within the [repose] period, and a claimant commences his or her action after the [repose] period has passed, an action accrues but is barred. Where the injury occurs outside the [repose] period, no substantive cause of action ever accrues, and a claimant’s actions are likewise barred.” Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289, 291 (1992) (citations omitted).

Despite the absolute and unyielding nature of statutes of repose, however, the General Assembly has allowed plaintiffs, in some cases, to commence a lawsuit even after the general statute of repose has run. For example, the General Assembly has permitted allegations of fraudulent concealment to toll the otherwise applicable three-year statute of repose in medical malpractice cases. See Tenn.Code Ann. § 29-26-116 (1980 & Supp.1999). Likewise, the four-year statute of repose for actions relating to defective improvement of real estate is tolled by statute if the injury occurs within the fourth year. See Tenn. Code Ann. § 28-3-203(a) (1980 & Supp. 1999). It appears that when the General Assembly has desired that exceptions apply to a statute of repose, however, the exception is either found with the language of the statute itself, or in another part of the code specifically referencing the particular statute of repose.

In considering whether the TPLA statute of repose is tolled for mental incompetency, we must determine and give effect to the intent of the legislature. See, e.g., Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 599 (Tenn.1999). In so doing, we are to examine the “natural and ordinary meaning of the language used” in the TPLA, “without a forced or subtle construction that would limit or extend the meaning of the language.” See, e.g., Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 107 (Tenn.1996). Where the language of the statute “is clear and unambiguous, then this Court will give effect to the statute according to the plain meaning of its terms.” Lavin v. Jordon, 16 S.W.3d 362, 365 (Tenn.2000); see also Gragg v. Gragg, 12 S.W.3d 412, 415 (Tenn.2000).

The TPLA ten-year limiting period states that “in any event, an action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption.” Tenn. Code Ann. § 29-28-103(a) (emphasis added). When read in context, the language “in any event” carries precisely the same connotation as “notwithstanding other exceptions” or “without regard to any other limitations,” and the General Assembly’s use of this language compels the conclusion that it intended for the ten-year repose period to be an absolute bar beyond which no products liability cause of action could exist. Because the language is clear, this Court is not in a position to give the statute a construction which is not supported by the language. Consequently, the use of such broad language by the General Assembly weighs very heavily against finding an implied exception to the general ten-year repose period for mental incompetency.

Section 29-28-103(a) also expressly exempts certain causes of action from application of the ten-year statute of repose. For example, the ten-year statute of repose does not strictly apply in the case of minors, who may still bring an action within one year of attaining majority even if the initial ten-year period has long since expired. Tenn.Code Ann. § 29-28-103(a). Moreover, since the original enactment of the TPLA in 1978, the General Assembly has carefully carved out two other exceptions to the statute of repose. In 1979, the legislature exempted asbestos claims from the operation of the statute of repose, 1979 Tenn. Pub. Acts ch. 162, § 1, and in 1993, the General Assembly extended the ten-year period to twenty-five years for claims arising from injury caused by silicone gel breast implants, 1993 Tenn. Pub. Acts ch. 457. Any reference to persons of unsound mind, however, is conspicuously absent.

It is a well-established canon of statutory construction that “the mention of one subject in a statute means the exclusion of other subjects that are not mentioned.” See, e.g., Carver v. Citizen Util. Co., 954 S.W.2d 34, 35 (Tenn.1997) (citations omitted). Section 29-28-103 originally contained one express exception to the general ten-year limitations period, and the General Assembly has twice amended the statute since 1978 to include other express exceptions. The failure of the General Assembly to expressly include any provision' exempting persons of unsound mind from the statute of repose strongly indicates its desire not to have such an exemption. Accordingly, we will not rewrite this statute to insert other categories not intended by the General Assembly. If the General Assembly intended for mental incapacity to toll the ten-year statute of repose, it could easily have done so while amending the statute to provide for other exceptions.

The plaintiff argues in response that even though the TPLA statute of repose contains no express exception for persons of unsound mind, operation of the TPLA statute of repose is nevertheless tolled by the legal disability statute, Tennessee Code Annotated section 28-1-106 (1980 & Supp.1999). Section 28-1-106 reads as follows:

28-1-106. Persons under disability on accrual of right.--
If the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or his representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceed three (3) years, and in that case within three (3) years from the removal of such disability.

According to the plaintiffs interpretation, the General Assembly did not need to expressly exempt persons of unsound mind from the TPLA statute of repose because the legal disability statute provides for the same effect. We disagree.

The language of the legal disability statute itself strongly suggests that it only applies to toll statutes of limitations. For example, the effect of section 28-1-106 is to extend a limitations period so that a plaintiff may “commence the action,” and the language of section 28-1-106 addresses only those legal disabilities which were in place at “time the cause of action accrued.” As we stated previously, statutes of repose differ primarily from statutes of limitations in that statutes of repose begin to run with some defining event without regard to the accrual of the cause of action. Indeed, it is certainly possible that a statute of repose will extinguish a cause of action even before the cause of action can formally accrue, and a statute of repose will operate to extinguish a claim that has accrued but has yet to be brought, thereby denying a plaintiff the opportunity to “commence the action.” Accordingly, the references to the accrual and bringing of a cause of action indicate that this section is only applicable to extend the running of a statute of limitations, and we will not interpret the legal disability statute to give it effect beyond the fair import of its terms.

Further, because “statutes must be understood in light of the purposes the Legislature intended to accomplish by their passage,” Business Brokerage Ctr. v. Dixon, 874 S.W.2d 1, 5 (Tenn.1994), it is important to consider the general background against which the General Assembly enacted the TPLA in 1978. During the 1970s, state legislatures nationwide began to adopt statutes of repose in response to a “perceived ‘crisis’ ” in products liability law “following a decade or two of rapid expansion of liability.” See W. Page Keeton, Prosser and Keeton on the Law of Torts § 31, at 167-68 & n. 26 (5th ed. 1984). In Tennessee, the General Assembly also perceived a “crisis” in products liability lawsuits, and it was clear that this perceived crisis was the primary motivation for the Tennessee Products Liability Act of 1978. In the preamble to the TPLA, the General Assembly stated that

WHEREAS, The General Assembly finds and declares that the number of product liability suits and claims for damages and the amount of judgments, settlements and the expense of defending such suits have increased greatly in recent years, and because of these increases!,] the cost of product liability insurance was substantially increased ....
WHEREAS, In view of these recent trends and for the purpose of alleviating the adverse effects which these trends are producing, it is necessary to protect the public interest by enacting measures designed to make product liability insurance more readily available at a reasonable cost so that product cost may be lessened to the consumer; and
WHEREAS, In enacting this act, it is the purpose of the General Assembly to provide a reasonable time within which action may be commenced against manufacturers and/or sellers while limiting the time to a specific period of time for which product liability insurance premiums can be reasonably and accurately calculated....

1978 Tenn. Pub. Acts ch. 703 preamble.

As the preamble to the TPLA indicates, the General Assembly perceived that uncertainty as to future liability increased the premiums for product liability insurance, which in turn increased the costs of production and ultimately consumer prices. The legislature considered the limitation of future liability to a reasonable and specific period to be one of the most important keys in solving the perceived products liability crisis. Accordingly, it is significant that the General Assembly created within the TPLA its own specific set of limitation periods for products liability actions, rather than relying upon more general limitation periods found elsewhere in the code. In fact, section 29-28-103(a) is quite explicit that its statutes of repose apply “notwithstanding any exceptions” to the limitation periods which would otherwise apply in Titles 28 and 47.

Where the General Assembly enacts some specific limitations period as part of an overall statutory scheme, these specific limitations will apply over more general provisions found elsewhere in the code. See Dobbins v. Terrazzo Mach. & Supply Co., 479 S.W.2d 806, 809 (Tenn.1972) (stating that “where the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general manner should not be considered as intended to effect the more particular provision”). Therefore, to reason that the legal disability statute somehow tolls the ten-year statute of repose in section 29-28-103(a) for an indefinite period of mental incompetency would be to defeat the very purposes behind the enactment of the TPLA. As the TPLA statute of repose was enacted as an important and specific measure to address products liability actions, we will not construe the legal disability statute to undermine the purposes behind that Act.

Because the General Assembly has excepted minors from strict application of the ten-year statute of repose, it could not have been unmindful as to the effect of the TPLA ten-year statute of repose on some persons with legal disabilities. Despite the plaintiffs assertions to the contrary, however, not all types of legal disability affect the running of a statute of repose in the same manner. For example, minority differs from mental incompetency in that any period of minority will necessarily extend no longer than eighteen years. Extending the running of a statute of repose during the minority of the plaintiff is not entirely destructive of the purposes for which statutes of repose have been enacted, because a defendant’s exposure to liability will nevertheless be discontinued after an ascertainable passage of time. Consequently, by allowing a special exception for minors in the TPLA statute of repose, the General Assembly did not undermine its goal of providing for “a reasonable time within which action may be commenced.”

By contrast, a policy that allows a plaintiffs mental incompetency to toll a statute of repose severely damages the purposes underlying statutes of repose generally because it envisions no practical end to a defendant’s liability. Mental incompetency, for instance, could continue throughout the plaintiffs lifetime, and even once ended, could occur again. Although section 28-1-106 groups mental incompetency with minority, the General Assembly was not required to toll all otherwise applicable statutes of repose for persons falling within either category of legal disability, and we will not upset the legislative purpose of the TPLA by unduly extending the statute of repose ourselves.

Finally, the plaintiff urges this Court to follow the approach taken by Bowers by Bowers v. Hammond, 954 S.W.2d 752 (Tenn.Ct.App.1997), in which the Court of Appeals held that the legal disability statute tolled the three-year medical malpractice statute of repose, Tenn.Code Ann. § 29-26-116, during the minority of the plaintiff. In dicta, the Bowers court expressed the belief that minority status was synonymous with mental incompetency, and that section 28-1-106 permitted tolling of the statute of repose for mental incompetency as well.

We disagree with the rationale used by the Bowers court to find implied exceptions for minority and mental incompetence to the three-year medical malpractice statute of repose. The Bowers holding is in stark contrast to the plain language of the statute, which admits of no tolling other than for fraudulent concealment, and the holding fails to recognize the policies underlying the statute of repose itself. In addition, the Bowers court seems to have ignored that the plain language of the legal disability statute applies only to toll statutes of limitations rather than statutes of repose.

Despite its imperfect reasoning, though, we note that the actual holding of the Bowers court does little structural damage to the medical malpractice statute of repose. As we stated earlier, not all types of legal disability affect the running of a statute of repose in the same manner, and an exception for minority merely extends-but does not practically eliminate — the repose period. Because Bowers has been the law in this state since 1997, and because the General Assembly has made no effort to amend the three-year statute of repose since Bowers to remove the implied exception for minority, we recognize that the bench, bar, and the public in general may have various reliance interests in its holding. Accordingly, we limit the precedential weight of that opinion to its explicit holding that the three-year medical malpractice statute of repose is tolled during the minority of the plaintiff. To the extent that the Bowers dicta can be read to toll any statute of repose for mental incompetency under Tennessee Code Annotated section 28-1-106, however, it is overruled.

CONCLUSION

In summary, we hold that the ten-year statute of repose in Tennessee Code Annotated section 29-28-103(a) is not tolled during any period of the plaintiffs mental incompetency. The language of section 29-28403(a) admits of no exception other than those expressly listed, the policies underlying the products liability statute of repose are not furthered by an implied exception for mental incompetency, and the legal disability statute does not operate to toll an otherwise applicable statute of repose. Accordingly, the judgment of the Court of Appeals upholding the grant of summary judgment to the defendants is affirmed, and the plaintiffs action with respect to these defendants is dismissed.

Costs of this appeal are assessed to the plaintiff, Ms. Gayle Penley.

      . Although not strictly relevant for purposes of this appeal, the plaintiff also filed suit against William and Ann Morris for their alleged negligence in failing to warn the plaintiff "as to the unreasonably dangerous nature” of the ATV and in failing to “provide any safety equipment or instruction.” These two defendants are not involved in the case before this court, and any reference to the "defendants” in our opinion excludes defendants William and Ann Morris.

      . Any such action, though, “shall, in all events, be brought within five (5) years....” Tenn.Code Ann. § 28-3-203(b).

      . Of course, the TPLA also has a "useful life” provision in the statute of repose which extinguishes a claim within one year "after the expiration of the anticipated life of the product.” Courts are to apply either this provision or the ten-year provision, “whichever is the shorter.” Tenn.Code Ann. § 29-28-103(a). Because this portion of the statute is not an issue in this case, we do not specifically address the "useful life” provision, although the same analysis would presumably apply.

      . Several commentators have questioned whether the products liability crisis was real or merely perceived. Data and scholarly research suggest that there was neither an insurance crisis nor a litigation explosion. See, e.g., Interagency Task Force of Prod. Liab., U.S. Dept. of Commerce, Final Report (1977); Theodore Eisenberg & James A. Henderson, Jr., Inside the Quiet Revolution in Products Liability, 39 UCLA L. Rev. 731 (1992); Jerry J. Phillips, Attacks on the Legal System-Fallacy of "Tort Reform” Arguments, Trial, Feb. 1992, at 106. Irrespective of how the "crisis” actually came about, however, it cannot be disputed that it provided the motivation for the General Assembly to enact the TPLA and its corresponding statute of repose.

      . Contrary to the plaintiff’s assertions, we did not unduly extend the TPLA six-year statute of repose in Tennessee Code Annotated section 29-28-103(a) with our decision in Sharp v. Richardson, 937 S.W.2d 846, 850 (Tenn.1996). In Sharp, we held that the statute of repose did not bar actions which were initially filed during the repose period, but were voluntarily dismissed and re-filed pursuant to the savings statute, Tenn.Code Ann. § 28-1-105(a) (1980 & Supp.1995), after the statute of repose had run. We held that even though the General Assembly was silent as to any intention for the TPLA to supersede the savings statute, “application of the savings statute ... does not conflict nor frustrate either the letter or purpose of the products liability statute of repose.” Sharp, 937 S.W.2d at 850. We were careful to note that issues of fair notice and accurate assessment of liability were not entitled to great weight since the plaintiff had to initially file suit within the repose period to take advantage of the savings statute. With the plaintiff's initial filing, defendants were on fair notice of the claim and could make financial adjustments accordingly. These issues are entitled to greater weight in the present case, however, because the very nature of mental incompetency renders uncertain both issues of fair notice and accurate assessment of liability, and because the plaintiff in this case, unlike Richardson, initially filed suit beyond the ten-year period of repose.


source: Caselaw Access Project

author: BIRCH, J.,

license: Public Domain

text:
    STATE of Tennessee v. Brandon WILSON.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 18, 2000.

      Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Marvin E. Clements, Jr., Nashville, Assistant Attorney General, Michael L. Flynn, District Attorney General, Philip Morton, Assistant District Attorney General, Maryville, for appellant, State of Tennessee.
    Mack Garner, Public Defender, George H. Waters, Assistant Public Defender, Ma-ryville, for appellee, Brandon Wilson.
   OPINION

BIRCH, J.,

delivered the opinion of the court, in which

ANDERSON, C.J., DROWOTA, HOLDER, and BARKER, JJ., joined.

This is an appeal from the Circuit Court for Blount County, where Brandon Wilson, the defendant, pleaded guilty to seven counts of delivery of cocaine and to three counts (merged by the trial court into one count) of possession of cocaine with the intent to sell or deliver. Wilson appealed to the Court of Criminal Appeals contending, inter aha, that his indictments were legally insufficient and that the trial court erred in accepting the guilty plea because it was not voluntarily entered. The Court of Criminal Appeals agreed and reversed Wilson’s convictions on all counts. We hold that the seven indictments for delivery of cocaine are sufficient; Wilson’s convictions on these indictments are, therefore, reinstated. Additionally, because the issue concerning the voluntariness of Wilson’s plea was not properly before the intermediate appellate court, we reinstate the conviction for possession of cocaine. This reinstatement is without prejudice to Wilson’s right to file a petition for post-conviction relief within the appropriate time.

I. Introduction

We granted this appeal to determine the sufficiency of seven indictments charging Brandon Wilson, the defendant, with delivery of cocaine and to determine if the issue of whether Wilson knowingly and voluntarily pleaded guilty to the charge of cocaine possession with intent to sell or deliver was properly before the Court of Criminal Appeals on direct appeal. After reviewing the relevant authorities, we hold that the seven indictments for delivery of cocaine were sufficient. Wilson’s convictions for these charges are, therefore, reinstated. Additionally, because the issue concerning the voluntariness of Wilson’s plea was not properly before the intermediate appellate court, we reinstate the conviction for possession of cocaine. This reinstatement is without prejudice to Wilson’s right to file a petition for post-conviction relief at an appropriate time.

II. Background

Wilson entered pleas of guilty to six counts of delivering one-half gram or more of cocaine, a Class B felony; three counts (merged by the trial court into one count) of possession of less than one-half gram of cocaine with the intent to sell or deliver, a Class C felony; and one count of delivery of less than one-half gram of cocaine, a Class C felony.

Prior to entering the pleas, and with trial imminent, Wilson filed a motion seeking a mental examination to evaluate his competency. After a hearing, the trial court denied Wilson’s motion but ruled that should he be found guilty, the court would order a mental evaluation for sentencing purposes. After a short recess, Wilson entered the guilty pleas.

The trial court sentenced Wilson as a Range I, standard offender to ten years in the Department of Correction for each of the Class B felonies. The court sentenced Wilson as a Range II, multiple offender to serve six years for each Class C felony. The trial court levied fines totaling $7,000 and ordered the sentences to be served concurrently.

On appeal, Wilson contended, inter aha, that the indictments were insufficient because they did not allege the essential culpable mental state, “knowingly,” as required by Tenn.Code Ann. § 39-17-417 and that the trial court erred because Wilson was incompetent to plead guilty. Finding that the seven indictments for delivery of cocaine were insufficient, the Court of Criminal Appeals reversed the convictions and dismissed the charges. The Court of Criminal Appeals also reversed Wilson’s conviction for possession of cocaine on the basis that he had not knowingly and voluntarily entered into the plea.

The State of Tennessee appeals the Court of Criminal Appeals’s decision. The State contends that the indictments for the delivery of cocaine are legally sufficient. Moreover, the State insists that the issue of whether Wilson was competent to enter a guilty plea, or if he did so knowingly and voluntarily, was not properly before the Court of Criminal Appeals on direct appeal. Thus, the State insists that Wilson’s convictions should be reinstated. Wilson, on the other hand, insists that the seven indictments for delivery of cocaine are insufficient because they do not allege the culpable mental state of “knowingly” as required by TenmCode Ann. § 39-17-417 and that his Boykin claim, that is, whether he knowingly and voluntarily entered the guilty plea, was properly before the Court of Criminal Appeals on direct appeal. Accordingly, Wilson insists that the judgment of the Court of Criminal Appeals should be affirmed.

III. Standard of Review

Because the issues before us are questions of law, our review is de novo. State v. Davis, 940 S.W.2d 558, 561 (Tenn.1997).

IV. Discussion

A. Sufficiency of the Indictments

We first address the issue of the sufficiency of the seven indictments charging Wilson with the delivery of cocaine. The resolution of this issue is controlled by our decisions in Ruff v. State and State v. Carter.

In Ruff, we were asked to determine the sufficiency of an indictment for aggravated kidnaping when the indictment referenced the appropriate statute but failed to include the mens rea required under the statute. Id. at 99. Reasoning that by referencing the aggravated kidnaping statute the defendant was placed on notice of the mental state required to commit the offense, we found the indictment legally sufficient. Id. Similarly, in Carter, we were asked to determine whether two indictments for felony murder, which referenced the felony murder statute but failed to include the statutorily required mens rea for the offense, were legally sufficient. 988 S.W.2d at 148. We held again that the indictments were' legally sufficient because, by referencing the felony murder statute, the defendant was provided notice of the required mens rea. Id. at 149.

Both Ruff and Carter are apposite to the case at bar. In this case, the required mental state under Tenn.Code Ann. § 39-17-417(a)(2), the statute defining delivery of cocaine, is “knowingly.” The indictments charging Wilson with delivery of cocaine, however, do not mention this required mental state. Rather, they simply charge that “BRANDON WILSON ... did unlawfully deliver a controlled substance, to-wit: Cocaine, as classified in Section 39-17-408, in violation of Tennessee Code Annotated, Section 39 — 17— 417(c)(1), all of which is against the peace and dignity of the State of Tennessee.” Nonetheless, under the reasoning of both Ruff and Carter, because the indictments charging Wilson with the delivery of cocaine referenced the appropriate statute, he was provided sufficient notice of the required mental state to commit the offense. The indictments, therefore, are legally sufficient, and Wilson’s convictions are reinstated.

B. Boykin Claim on Direct Appeal

We must next determine whether the Court of Criminal Appeals had jurisdiction to hear and determine, on direct appeal, the voluntariness of Wilson’s pleas of guilty. In Tennessee, the right to appeal a plea of guilty entered in the trial court is severely limited to those cases which fit within one of the narrow exceptions enumerated in Tenn.R.Crim.P. 37(b) or Tenn.R.App.P. 3(b). See Patterson v. State, 684 S.W.2d 110, 111-12 (Tenn.Crim.App.1984). Tennessee Rule of Criminal Procedure 37(b) provides:

(b) An appeal lies from any order or judgment in a criminal proceeding where the law provides for such appeal, and from any judgment of conviction:
(2) Upon a plea of guilty or nolo con-tendere if:
(i) Defendant entered into a plea agreement under Rule 11(e) but explicitly reserved with the consent of the state and of the court the right to appeal a certified question of law that is dispositive of the case; or
(ii) Defendant seeks review of the sentence set and there was no plea agreement under Rule 11(e); or
(iii) The error(s) complained of were not waived as a matter of law by the plea of guilty or nolo contendere, or otherwise waived, and if such errors are apparent from the record of the proceedings already had; or
(iv) Defendant explicitly reserved with the consent of the court the right to appeal a certified question of law that is dispositive of the case.

Tenn.R.Crim.P. 37(b). Tennessee Rule of Appellate Procedure 3(b) provides:

In criminal actions an appeal as of right by a defendant lies from any judgment of conviction entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals ... (2) on a plea of guilty or nolo contendere, if the defendant entered into a plea agreement but explicitly reserved with the consent of the state and the trial court the right to appeal a certified question of law dispositive of the action, or if the defendant seeks review of the sentence and there was no plea agreement concerning the sentence, or if the issues presented for review were not waived as a matter of law by the plea of guilty or nolo contendere and if such issues are apparent from the record of the proceedings already had.

Tenn.R.App.P. 3(b).

Wilson’s appeal from his pleas of guilty does not fit within any of these exceptions. His appeal does not involve a certified question and, thus, cannot be addressed under Tenn.R.Crim.P. 37(b)(2)© or (iv) or under Tenn.R.App.P. 3(b)(2). It does not challenge his sentence; accordingly, his appeal is not cognizable under Tenn. R.Crim.P. 37(b)(2)(ii) or Tenn.R.App.P. 3(b)(2). The only exception into which Wilson’s appeal may fit is Tenn.R.Crim.P. 37(b)(2)(iii), which permits an appeal after a guilty plea if “[t]he error(s) complained of were not waived as a matter of law by the plea of guilty ... or otherwise waived, and if such errors are apparent from the record of the proceedings already had .... ” Tenn.R.Crim.P. 37(b)(2)(iii) (emphasis added); see also Tenn.R.App.P. 3(b)(2). The advisory commission comments to the rule explain that a defendant should be permitted to appeal under Tenn.R.Crim.P. 37(b)(2)(iii) only in cases where “the record clearly reflects an invalidating error, such as the clear denial of the right to counsel or a conviction under an invalid statute, wherein it would be judicially inefficient to require a post-conviction collateral attack when the error is apparent upon the face of the existing record.” Tenn.R.Crim.P. 37(b)(2)(iii) advisory commission comments (emphasis added).

Unlike the denial of the right to counsel or conviction under an invalid statute, whether a defendant knowingly and voluntarily entered a guilty plea will rarely, if ever, be apparent from a record of the “proceedings already had.... ” Tenn. R.Crim.P. 37(b)(2)(iii); see Tenn.R.App.P. 3(b)(2). Such is not apparent in the record before us; Wilson’s claim that his guilty plea was not knowingly and voluntarily entered does not fit, therefore, within the exception provided by Tenn.R.Crim.P. 37(b)(2)(iii). See Tenn.R.Crim.P. 37(b)(2)(iii); see also Tenn.R.App.P. 3(b)(2).

Wilson nonetheless insists that under this Court’s decision in State v. Mackey, his claim that his guilty plea, was invalid because of an alleged Boykin error was properly before the Court of Criminal Appeals. Wilson’s reliance on Mackey, however, is misplaced., While Mackey did involve a direct appeal from a guilty plea on the basis of a potential Boykin error, the decision contains no discussion as to the propriety of such an appeal. Moreover, Mackey was decided on June 20, 1977, prior to the effective dates of the Tennessee Rules of Criminal Procedure (July 13, 1978) and the Tennessee Rules of Appellate Procedure (July 1, 1979). Significantly, both Tenn.R.Crim.P. 37(b) and Tenn. RApp.P. 3(b) restrict the right to a direct appeal from a guilty plea to the narrow exceptions previously enumerated. It is presumed that in ratifying both of these rules, the General Assembly was aware of our decision in Mackey. See Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995). Accordingly, to the extent that Mackey could be read to allow a defendant a direct appeal from a guilty plea on the basis of an alleged Boykin error, that portion of Mackey has been superseded by the rules which limit the right to a direct appeal to the exceptions enumerated in Tenn. R.Crim.P. 37(b) and Tenn.R.App.P. 3(b).

Although we have found that Wilson’s appeal does not fit within any of the exceptions under Tenn.R.Crim.P. 37(b) or Tenn.R.App.P. 3(b) and was therefore not properly before the Court of Criminal Appeals, Wilson may yet have redress. As suggested by the comments to Tenn. R.Crim.P. 37(b)(2)(iii), the proper forum for asserting that a plea was not knowingly or voluntarily entered in accordance with Boykin is in a post-conviction proceeding.

In Tennessee, post-conviction proceedings are available to defendants whose complaint is of constitutional dimensions. See State v. McClintock, 732 S.W.2d 268, 271 (Tenn.1987). “A petition for post-conviction relief is an application to the court ... that seeks to have [a] conviction or sentence set aside or an appeal granted on the ground or grounds that the conviction or the sentence or the denial of an appeal violated the state or federal constitution.” Tenn.R.Sup.Ct. 28, § 2(A). Relief is granted when a conviction or sentence “is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.Code Ann. § 40-30-203 (1997).

As part of the post-conviction procedure, a defendant may be entitled to an eviden-tiary hearing in which the petitioner has the right to testify. See Tenn.R.Sup.Ct. 28, § 8; Tenn.Code Ann. § 40-30-210 (1997). During such a hearing, both parties may be permitted to take affidavits or depositions in addition to having the right to call and cross examine witnesses. See Tenn.R.Sup.Ct. 28, § 8; Tenn.Code Ann. § 40-30-210 (1997).

Whether a plea was knowing and voluntary is an issue of constitutional dimension because “[t]he due process provision of the federal constitution requires that pleas of guilty be knowing and voluntary.” Johnson v. State, 834 S.W.2d 922, 923 (Tenn.1992) (citing Boykin, 395 U.S. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279-80). As the United States Supreme Court reasoned in Boykin:

[a] defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For his waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment or abandonment of a known right or privilege.” Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.

Boykin, 395 U.S. at 243 n. 5, 89 S.Ct. at 1712 n. 5, 23 L.Ed.2d. at 280 n. 5 (citations omitted). Thus, a claim such as Wilson’s, which asserts that a plea was not voluntarily and knowingly entered, implicates his düe process rights and therefore falls squarely within the ambit of issues appropriately addressed in a post-conviction petition.

Post-conviction proceedings are also the appropriate forum for challenging guilty pleas on the basis of alleged Boykin errors because, as we have previously noted, the inquiry necessary for determining whether a defendant knowingly and voluntarily entered a plea may not be possible from “the record of the proceedings already had .... ” Tenn.R.Crim.P. 37(b)(2)(iii); see Tenn.R.App.P. 3(b)(2). For example, when inquiring whether a defendant knowingly and voluntarily entered a plea, a court must “determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced Godinez v. Moran, 509 U.S. 389, 401 n. 12, 113 S.Ct. 2680, 2687 n. 12, 125 L.Ed.2d 321, 333 n. 12 (1993)(emphasis omitted). In making such a determination, courts are instructed to ensure that the defendant is “fully aware of the direct consequences [of the plea], including the actual value of any commitments made to him [or her] by the court, prosecutor, or his [or her] own counsel.” Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760 (1970) (citation omitted). Moreover, in order to knowingly and voluntarily enter a plea, the plea cannot be “induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or ... by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes);” it may not be the product of “[fignorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.” Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1712, 23 L.Ed.2d. at 279. Finally, as we have noted, “the core requirement of Boykin is ‘that no guilty plea be accepted without an affirmative showing that it was intelligent and voluntary.’ ” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.1993) (quoting Fontaine v. United States, 526 F.2d 514, 516 (6th Cir.1975)).

It will be difficult, and perhaps impossible, for an intermediate court, reviewing only the record of the plea submission hearing, to make an accurate determination of the knowing and voluntary nature of a plea. Post-conviction proceedings, however, permit the development of a record to fully examine whether a defendant understood his or her rights and whether he or she voluntarily waived them by pleading guilty.

Finally, we note that we have often reviewed cases involving alleged Boykin errors in a post-conviction setting. For example, in Johnson, we reasoned that a previous version of the Post Conviction Procedures Act “provide[d] the procedure for attacking a constitutionally defective conviction based on a guilty plea that was not knowingly and voluntarily entered, as required by Boykin.” 834 S.W.2d at 925. Thus, our holding, that challenges to guilty pleas on the basis of alleged Boykin errors are properly raised in post-conviction proceedings rather than on direct appeal, is not a novel proposition.

V. Conclusion

For the reasons articulated above, we hold that the seven indictments for delivery of cocaine are sufficient. Wilson’s convictions as to these charges are, therefore, reinstated. Additionally, we hold that the issue of whether Wilson knowingly and voluntarily pleaded guilty was not properly before the Court of Criminal Appeals. Wilson’s conviction for cocaine possession is, therefore, reinstated. Wilson, however, is not by this opinion precluded from raising the alleged Boykin error in a petition for post-conviction relief.

Costs of this appeal are assessed to the defendant.

      . Oral argument was heard in this case on March 29, 2000, in Dayton, Rhea County, Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

      . Tenn.Code Ann. § 39-17-417(c)(l) (Supp. 1993).

      . „ Tenn.Code Ann. § 39-17-417 (Supp. 1993).

      . Tenn.Code Ann. § 39-17-417(c)(2) (Supp. 1993).

      . In his brief to the Court of Criminal Appeals, Wilson only contended that he was incompetent to enter a plea and did not address the issue of whether he knowingly and voluntarily pleaded guilty. The Court of Criminal Appeals, however, apparently re-framed Wilson’s argument to include a challenge to the knowing and voluntary nature of his plea under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In so doing, the Court of Criminal Appeals addressed both issues.

      . 978 S.W.2d 95 (Tenn.1998).

      . 988 S.W.2d 145 (Tenn.1999).

      . Under Tenn.Code Ann. § 39-17-417(a)(2), "[i]t is an offense for a defendant to knowingly ... [djeliver a controlled substance.” Tenn. Code Ann. § 39-17-417 (Supp.1993) (emphasis added).

      . 553 S.W.2d 337 (Tenn. 1977).

      . Wilson also contends that the Court of Criminal Appeals had the authority to address his Boykin claim under the plain error rule found in Tenn.R.Crim.P. 52(b). We find his argument without merit. A plain error under Tenn.R.Crim.P. 52(b) is "one that is obvious or clearly shown in the record...." State v. Brooks, 909 S.W.2d 854, 863 (Tenn.Crim.App.1995) (citing State v.. Adkisson, 899 S.W.2d 626, 636-42 (Tenn.Crim.App.1994)). We have already determined that, in many cases, an alleged Boykin error will not be apparent from the record before the intermediate court, and therefore, an appeal on such grounds does not fall under Tenn.R.Crim.P. 37(b)(2)(iii). Thus, under the same rationale, an appeal of a guilty plea based on an alleged Boykin error cannot be addressed by an intermediate court under Tenn.R.Crim.P. 52(b).

      . See North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162, 168 (1970) ("The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant .’’).

      . Id. (citation omitted).

      . See Blankenship v. State, 858 S.W.2d 897 (Tenn.1993); Archer v. State, 851 S.W.2d 157 (Tenn.1993); State v. Prince, 781 S.W.2d 846 (Tenn.1989).

      . As the State aptly notes, there is an additional avenue through which a defendant may challenge his or her guilty plea on the basis of an alleged Boykin error which does not involve a direct appeal under either Tenn.R.Crim.P. 37(b)(2) or Tenn.R.App.P. 3(b)(2). The defendant may file a motion to withdraw the plea under Tenn.R.Crim.P. 32(f). See Tenn.R.Crim.P. 32(f) (“A motion to withdraw a plea of guilty may be made upon a showing by the defendant of any fair and just reason only before sentence is imposed; but to correct manifest injustice, the court after sentence, but before the judgment becomes final, may set aside the judgment of conviction and permit the defendant to withdraw the plea .”). A direct appeal then lies from a denial of a Rule 32(f) motion. See State v. Newsome, 778 S.W.2d 34 (Tenn.1989).