FILED

March 16, 2000

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE 

____________________________________________________________

)

THE WILSON COUNTY SCHOOL ) Davidson County Chancery Court

SYSTEM, ) No. 91-2675-II

)

 Plaintiff/Appellee/Cross-Appellant, )

) C.A. No. M1999-00359-COA-R3-CV

VS. )

)

CREAD CLIFTON and wife, TAMELA )

CLIFTON, as next of kin for their minor )

son, WILLIAM (KYLE) CLIFTON, )

)

 Defendants/Appellants/Cross-Appellees. )

)

______________________________________________________________________________

From the Chancery Court of Davidson County at Nashville.

Honorable Carol L. McCoy, Chancellor 

J. Page Garrett,

Tennessee Protection & Advocacy, Nashville, Tennessee

Attorney for Defendants/Appellants/Cross-Appellees.

Michael R. Jennings, Lebanon, Tennessee

Attorney for Plaintiff/Appellee/Cross-Appellant.

OPINION FILED:

AFFIRMED AND REMANDED 

FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)

HIGHERS, J.: (Concurs)
1

For the current version of the IDEA, see 20 U.S.C.A. §§ 1400–1487 (West 2000).

Cread and Tamela Clifton, on behalf of their minor son, William Kyle Clifton, appeal

the trial court’s judgment denying their request for prejudgment interest on a reimbursement award

and an attorney’s fee award entered in their favor pursuant to the Individuals with Disabilities

Education Act. The Wilson County School System also has appealed, contending that the trial court

erred (1) in granting the Cliftons’ claim for reimbursement, and (2) in awarding the Cliftons’

attorney’s fees based upon the court’s ruling that the Cliftons were the prevailing party in this

litigation. After carefully reviewing the record, we affirm the trial court’s judgment in its entirety.

I. The Individuals with Disabilities Education Act (IDEA)

The Cliftons brought this action against the Wilson County School System pursuant

to the Individuals with Disabilities Education Act (IDEA).1 Before setting forth the factual and

procedural history of this case, we find it useful to outline some of the basic purposes and

requirements of the IDEA. In enacting the IDEA, Congress intended, inter alia, “to ensure that all

children with disabilities have available to them a free appropriate public education that emphasizes

special education and related services designed to meet their unique needs and prepare them for

employment and independent living.” 20 U.S.C.A. § 1400(d)(1)(A) (West 2000). To this end, the

IDEA requires public school districts to develop a curriculum “tailored to the unique needs of the

[disabled] child by means of an ‘individualized educational program’” (IEP). Cleveland HeightsUniv. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 397-98 (6th Cir. 1998) (quoting Board of

Educ. v. Rowley, 458 U.S. 176, 181-82 (1982)).

An IEP is “the written statement which sets out an educational program to meet the

particularized needs of a child with disabilities.” Tennessee Dep’t of Mental Health & Mental

Retardation v. Paul B., 88 F.3d 1466, 1471 (6th Cir. 1996). The IEP’s “development and

implementation . . . are the cornerstones of the [IDEA].” Id. Among other things, each IEP must

set forth “the child’s current abilities, a description of the services to be provided, and progress
2The current version of the IDEA provides that an IEP must contain, inter alia, the following

elements:

(i) a statement of the child’s present levels of educational

performance, . . .

(ii) a statement of measurable annual goals, including

benchmarks or short-term objectives, . . .

(iii) a statement of the special education and related services

and supplementary aids and services to be provided to the child, or on

behalf of the child, and a statement of the program modifications or

supports for school personnel that will be provided for the child . . .

(iv) an explanation of the extent, if any, to which the child

will not participate with nondisabled children in the regular class . . .

. . . .

(vi) the projected date for the beginning of the services and

modifications described in clause (iii), and the anticipated frequency,

location, and duration of those services and modifications;

. . . .

(viii) a statement of – 

(I) how the child’s progress toward the annual

goals described in clause (ii) will be measured; and

(II) how the child’s parents will be regularly

informed . . . of . . . [their child’s progress].

20 U.S.C.A. § 1414(d)(1)(A) (West 2000).

goals.” Wise v. Ohio Dep’t of Educ., 80 F.3d 177, 183 (6th Cir. 1996) (citing 20 U.S.C.A.

§ 1401(a)(20)).2

The IDEA requires public school districts to ensure that children with disabilities are

educated “to the maximum extent appropriate” with nondisabled children. Doe v. Board of Educ.,

9 F.3d 455, 460 (6th Cir. 1993), cert. denied, 511 U.S. 1108 (1994); 20 U.S.C.A. § 1412(a)(5)(A)

(West 2000). In this way, Congress has stated a “very strong” preference for “mainstreaming”

disabled children by placing them in regular classes where feasible. Doe v. Board of Educ., 9 F.3d

at 460. Nevertheless, this “mainstreaming” requirement is not absolute, and courts have recognized

that mainstreaming is not required in every case. Id. Instead, the proper inquiry remains whether

the proposed placement is appropriate under the IDEA. Id.

Under the IDEA, parents who complain about the adequacy of their child’s IEP may

request an impartial due process hearing to be conducted by the local educational agency. See 20
U.S.C.A. § 1415(f) (West 2000). If the parents are dissatisfied with the results of the due process

hearing, the parents may appeal to the state educational agency, which is required to conduct an

impartial review of the local educational agency’s decision. See 20 U.S.C.A. § 1415(g) (West 2000).

After exhausting the state’s administrative procedures, the parents may bring a civil action in state

court or federal district court. See 20 U.S.C.A. § 1415(i)(2) (West 2000).

If the parents ultimately pursue such a civil action, the trial court is required to use

a modified de novo standard for reviewing the decision of the state educational agency. Peck v.

Lansing Sch. Dist., 148 F.3d 619, 625 (6th Cir. 1998); Doe v. Metropolitan Nashville Pub. Sch.,

133 F.3d 384, 387 (6th Cir.), cert. denied, 119 S. Ct. 47 (1998). This standard requires the trial court

to conduct an independent reexamination of the evidence. Renner v. Board of Educ., 185 F.3d 635,

641 (6th Cir. 1999). In conducting its review, however, the trial court must give “due weight” to the

state administrative proceedings and, specifically, to the findings and determinations of the hearing

officer or the administrative law judge who heard the case. Peck, 148 F.3d at 625-36; Doe v.

Metropolitan Nashville Pub. Sch., 133 F.3d at 388; Gillette v. Fairland Bd. of Educ., 932 F.2d 551,

553 (6th Cir. 1991). This deference to the final decisions of state authorities is required because

“courts are generalists with no expertise in the educational needs of [disabled] children, and will

benefit from the factfinding of a state agency with expertise in the field.” Renner, 185 F.3d at 641

(quoting Doe v. Smith, 879 F.2d 1340, 1343 (6th Cir. 1989), cert. denied, 493 U.S. 1025 (1990)).

Due to their technical expertise, “administrative agencies are traditionally better suited to make these

types of determinations.” Babb v. Knox County Sch. Sys., 965 F.2d 104, 107 (6th Cir.), cert.

denied, 506 U.S. 941 (1992).

In construing the IDEA’s requirement of a free appropriate public education, the

federal courts repeatedly have emphasized that public schools are not required to maximize a

disabled student’s educational potential. Renner v. Board of Educ., 185 F.3d 635, 644 (6th Cir.

1999); Doe v. Board of Educ., 9 F.3d 455, 459 (6th Cir. 1993), cert. denied, 511 U.S. 1108 (1994);

Cordrey v. Euckert, 917 F.2d 1460, 1473-74 (6th Cir. 1990), cert. denied, 499 U.S. 938 (1991);

Brimmer v. Traverse City Area Pub. Sch., 872 F. Supp. 447, 454 (W.D. Mich. 1994). Public

schools need only (1) comply with the IDEA’s procedural requirements, and (2) develop an IEP that

is “reasonably calculated to enable the child to receive educational benefits.” Renner, 185 F.3d at
644; Babb, 965 F.2d at 107; Cordrey, 917 F.2d at 1464. In this regard, the IDEA requires only that

public schools “provide children with disabilities an appropriate education, not the verybestpossible

special education services.” Wise v. Ohio Dep’t of Educ., 80 F.3d 177, 185 (6th Cir. 1996); accord

Cordrey, 917 F.2d at 1474. The IDEA “provides no more than a ‘basic floor of opportunity.’”

Doe v. Board of Educ., 9 F.3d at 459 (quoting Board of Educ. v. Rowley, 458 U.S. 176, 201

(1982)); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998)

(noting that IEP need not maximize child’s potential, offersuperior opportunities, or provide optimal

level of services).

Nevertheless, in order to be “appropriate,” the educational benefits provided by the

school district must be more than de minimis. Doe v. Board of Educ., 9 F.3d at 459. The “basic

floor of opportunity” provided by the IDEA should consist of “access to specialized instruction and

related services which are individually designed” to “confer some educational benefit” upon the

disabled child. Rowley, 458 U.S. at 201. Thus, the IEP proposed by the school district should

provide an opportunity for “meaningful” and not merely “trivial” advancement. Walczak, 142 F.3d

at 130; see also Bonnie Ann F. v. Calallen Indep. Sch. Dist., 835 F. Supp. 340, 346 (S.D. Tex.

1993) (indicating that, although IDEA does not require school district to attempt to maximize each

child’s potential, educational benefit provided to child must be “meaningful”), aff’d, 40 F.3d 386

(5th Cir. 1994), cert. denied, 514 U.S. 1084 (1995).

If the parents unilaterally place their child in a private program pending the outcome

of the administrative and judicial review process, the parents may seek retroactive reimbursement

for educational expenses and related services under the IDEA. Babb v. Knox County Sch. Sys., 965

F.2d 104, 107 (6th Cir.), cert. denied, 506 U.S. 941 (1992) (citing School Comm. v. Massachusetts

Dep’t of Educ., 471 U.S. 359, 369 (1985)). In such a case, however, the parents have the burden of

proving by a preponderance of the evidence that the proposed IEP was “inadequate,” “inappropriate,”

or “improper” and, further, that the private school placement was “proper” or “appropriate.”

Renner v. Board of Educ., 185 F.3d 635, 642 (6th Cir. 1999); Doe v. Metropolitan Nashville Pub.

Sch., 133 F.3d 384, 387 (6th Cir.), cert. denied, 119 S. Ct. 47 (1998);Wise v. Ohio Dep’t of Educ.,

80 F.3d 177, 184 (6th Cir. 1996); Doe v. Board of Educ., 9 F.3d 455, 458 (6th Cir. 1993), cert.

denied, 511 U.S. 1108 (1994); Babb v. Knox County Sch. Sys., 965 F.2d 104, 108 (6th Cir.), cert.
3

See Tenn. Code Ann. § 49-10-102(1) (1990).

4An M-Team consists of “a group of individuals, including educators and medical professionals

with knowledge of a child’s condition, who are required to develop an Individualized Educational

Program or IEP . . . , specifying the necessary special education and related services which the child

needs in order to receive a free appropriate public education.” Tennessee Dep’t of Mental Health &

Mental Retardation v. Paul B., 88 F.3d 1466, 1471 (6th Cir. 1996) (citing 34 C.F.R. §§ 300.340–350).

denied, 506 U.S. 941 (1992); Doe v. Defendant I, 898 F.2d 1186, 1191 (6th Cir. 1990). In

accordance with the foregoing authorities, the parents do not meet this burden merely by proving that

the private facility provided their child with superior services. Doe v. Board of Educ., 9 F.3d at 459.

Rather, the parents first must prove that the public school was “unable to provide [their] child with

an appropriate education.” Gillette v. Fairland Bd. of Educ., 932 F.2d 551, 554 (6th Cir. 1991).

II. Factual and Procedural History of the Cliftons’ IDEA Claim

The present dispute focuses on theWilson County School System’s efforts to develop

an appropriate IEP for the Cliftons’ son, Kyle. Prior to his second birthday, Kyle was diagnosed as

having a bilateral hearing impairment, and he was fitted for a hearing aid. As a result of his hearing

impairment, Kyle’s development of receptive and expressive language was delayed. For purposes

of these proceedings, the parties did not dispute that Kyle had a disability and that he was entitled

to special education services in accordance with the IDEA. The parties also did not dispute that Kyle

became eligible to receive these services when he reached the age of four years on March 23, 1990.3

Prior to Kyle’s fourth birthday, Kyle’s mother, Tamela Clifton, contacted the Wilson

County School System to inquire about providing special education services for Kyle. In response

to this request, the School System assembled an initial M-Team4 meeting for Kyle in February 1990.

At this meeting, School System representatives learned that Kyle also suffered from dyspraxia and

that this condition might have further delayed his speech and language development. The condition

had been tentatively diagnosed by the staff of the Bill Wilkerson Hearing and Speech Center in

Nashville, where Kyle was a student, and the diagnosis later was confirmed by Dr. Russell Jack

Love, a speech and language pathologist. Dr. Love explained that dyspraxia was a movement

disorder and that, more specifically, dyspraxia of speech was an inability to plan and sequence the
5The evidence indicated that an FM auditory trainer was a system worn by Kyle and his teacher

that overrode other noises in the room when the teacher spoke. 

movements of speech. The Bill Wilkerson Center’s staff first suspected that Kyle had this condition

when they observed that he did not move his mouth when he spoke. 

The M-Team met on at least two subsequent occasions, once inMarch 1990 and again

in May 1990. During this process, School System employees attempted to address concerns raised

by the Cliftons and, at each meeting, they proposed an IEP that they hoped would assuage the

Cliftons’ concerns. Despite these efforts, at the conclusion of each meeting, the Cliftons rejected

the proposed IEP as unacceptable, and they ultimately requested a due process hearing in accordance

with the IDEA. Pending the administrative proceedings that followed, Kyle remained a student at

the Bill Wilkerson Center. Consequently, in addition to challenging the School System’s final IEP,

the Cliftons sought reimbursement for the expense of educating Kyle at the Bill Wilkerson Center.

The final IEP proposed by the School System in May 1990 is the subject of this

dispute. In this IEP, the School System offered Kyle the following special education services:

1. Placement in special education classroom taught by Beverly

Mainland three days per week, six hours per day;

2. Use of FM auditory trainer5 at school;

3. Classroom assistance of deaf educator Chris Refseth thirty

minutes per week;

4. Speech and language therapy provided by Jane Ann Elrod

three days per week, thirty minutes per day;

5. Audiology evaluation three times per year; and

6. Occupational therapy evaluation. 

In July 1990, Michael Dover, the School System’s Director of Special Education

Services, wrote a letter to the Cliftons in which he summarized the School System’s May 1990 IEP.

In addition to describing the foregoing services, Dover indicated that the School System would “also

take [deaf educator ChrisRefseth’s]advice regarding physical changes in the classroom environment

needed to enhance Kyle’s ability to learn and [would] make those modifications immediately upon
6The September 1990 due process hearing did not result in a decision because the ALJ presiding

over the hearing subsequently recused himself. The Commissioner of the Tennessee Department of

Education assigned the case to another ALJ, who conducted a hearing on the merits in April 1991.

her recommendation.” Although the Cliftons previously had voiced specific objections about certain

physical characteristics of the classroom proposed for Kyle, Dover’s letter did not indicate what

physical changes Refseth had advised or what modifications the School System proposed to make.

At the hearing before the administrative law judge (ALJ),6 Mrs. Clifton explained

some of the reasons the Cliftons rejected the final IEP proposed by the School System for Kyle.

After describing the classroom proposed for Kyle, Mrs. Clifton explained her objections to the

room’s acoustic conditions:

What I observed about the classroom first on initial impact, was the

size of the room. It was very big. It had very large ceilings. There

was no carpet, there [were] no curtains on the windows. . . .

. . . .

Well, the reason that there is a problem with a large room and

high ceilings is because acoustically that’s not correct for hearing

impaired children. On parents’ terms and mother’s terms, Kyle does

not hear as well in a large room. There is more room for noises.

Carpet is always applied in hearing impaired children’s rooms

because it just keeps the sound – just makes it louder for them. It

makes the [teacher’s] voice – it makes – it just sort of closes in the

room, and so it really helped them talk. There was also an air

conditioning unit that was going on and off during this time because

Kyle has – or heating unit – I’m not sure which. Because Kyle has

normal hearing in the low frequency, normal to a mild loss, he’s very

sensitive to a low frequency sound. So everytime that furnace came

on, Kyle said, I hear it, I hear it. And I have talked to Wilson County

about this matter. They said while Kyle was in the classroom they

would just turn the furnace off so he wouldn’t have that problem. 

Mrs. Clifton also complained that the classroom’s visually stimulating appearance

and the teacher’s instructionalmethodswere designed for special education children and not hearingimpaired children. In addition to expressing concern over the teacher’s lack of experience with

hearing-impaired children, Mrs. Clifton explained:

But the other thing is because it was very visually stimulating.

When you work with hearing impaired children, you do not try to

visually stimulate them. They don’t need to have – for the most part,

and for Kyle, the individual we’re talking about, he doesn’t have
emotional or lack of environmental needs, that he [doesn’t] see

things, so he doesn’t need to be visually stimulated. How they [the

Bill Wilkerson Center’s staff] work with him mostly is to develop his

auditory skills. They put their hands over their mouth when they talk

to him to make sure he’s listening, and not so he can look at all these

things.

. . . .

. . . And I had some problems with the way the class was

taught because it was visually stimulating, and because it was

designed for these children and not for a hearing impaired child, the

language – the part of language was only a minor part of their class.

They’d had A-B-C time, they had language time, they had math time,

they had this time, and they had that time, so language was only a

small part, whereas, with a hearing impaired child, they need to just

have all the speech and language that they can possibly have. 

The Cliftons’ objections were supported by several educators who testified on the

Cliftons’ behalf. Mary Ann Schaffer, the director of the Bill Wilkerson Center’s early intervention

program, had a master’s degree in speech and language pathology. Schaffer described observations

that she made of the proposed classroom during a May 1990 visit:

The classroom was very large and very noisy. There was an air

conditioning unit that ran continuously during the time that I was in

the classroom, and every once in a while it would kind of kick in and

become even louder. And the classroom was not carpeted, the room

echoed, there were very high open ceilings, there were a lot of

windows without drapes, and it was a very stimulating classroom. 

Schaffer explained why these physical characteristics presented problems for a hearing-impaired

child like Kyle:

One of the necessities for educating a hearing impaired child is that

we look at their deficit, which is that they have difficulty hearing, and

if you put them in an environment where it makes it almost

impossible for them to hear, you’re not going to get a lot of input into

the child. So one of the first things that we look for in serving a

hearing impaired child is that they be in an acoustically comfortable

environment. And there are a lot of things that can be done to a

classroom, like using drapes, carpeting, corkboard, things like that,

that will absorb the sound. 

In addition to the foregoing concerns, Schaffer opined that the proposed classroom setting was

inappropriate for Kyle for another reason. The teacher of the comprehensive development
classroom, Beverly Mainland, was a special education teacher, but she was not trained to work with

hearing-impaired children. 

Similar concerns were expressed by Tracy Jo Duncan Burkhardt, the regional

coordinator for the Tennessee Infant Parent Program. Burkhardt, who had a master’s degree in deaf

education, testified that the comprehensive development classroom in which the School System

proposed to place Kyle “was an exceptional classroom as far as [she] was concerned in terms of what

it offer[ed] for comprehensive developmental delays.” Burkhardt did not believe, however, that the

classroom was appropriate for a hearing-impaired child. Burkhardt pointed out that the classroom

teacher’s expertise was in special education. Burkhardt also explained that the classroom’s language

curriculum, which was designed for special education children rather than for hearing-impaired

children, was not appropriate for Kyle:

I felt like the language approach that they were using should be

completely redirected in terms of Kyle, that they needed to use a

different type of approach, and I recommended some approaches in

terms of a language curriculum that would be more appropriate for a

hearing impaired child. 

The Cliftons also called Beverly Mainland, the teacher of the comprehensive

development classroom, as a witness. Mainland testified that she had a bachelor’s degree in

elementary education, with a concentration in special education. During herten-year teaching career,

Mainland had taught several hearing-impaired children, but she was not certified in deaf education

or speech and language pathology. Mainland had no experience teaching dyspraxic children, and

any familiarity that she had with dyspraxia was developed through her contact with the Cliftons.

Mainland was not familiar with any particular instructional methods or approaches that should be

used when teaching dyspraxic children. Mainland provided the following physical description of

her classroom:

The ceilings are high, the walls – my room is basically the

same as it was [in May 1990]. We had added – I have a carpet in the

toy corner. I have a central air unit, but that can be cut off and on at

our discretion. We have a lot of things on the wall, colorful things

and stimulating things. 
In defending its May 1990 IEP, the School System presented the testimony of, inter

alia, Lynn Sewell, an educational specialist who worked for the School System’s special education

department, and Chris Refseth (now Chris Lewis), the School System’s deaf education teacher.

Lynn Sewell testified that, by the time the second M-Team meeting took place in March 1990, the

School System was aware of the classroom’s acoustical problems and the need to make

modifications:

There was a lot of discussion at this M-Team and prior to this

M-Team, observations of the classroom, so we had been informed of

the acoustics and how that might affect Kyle. And at this M-Team,

one of the responsibilities that we had was also to address that

concern. Our recommendation was ultimately that one time a week

our person that’s in charge of deaf education, Chris Refseth, that she

meet with – she meet with the teacher, with the speech and language

therapist and observe Kyle. But one of her responsibilities and one

of the goals that was written at the M-Team was for Chris to tell us

what we needed to do to acoustically treat the room, because it does

have very high ceilings, and the air conditioner made more noise, and

this room is – this room also, we had been told that it was visually

very distracting, and we understood that, because this room is very

highly decorated. So at this M-Team we were aware of the need to

acoustically attend to the room, and Chris had experience and had

some training in those areas, so she was the person that we

recommended advise us. 

Although Sewell’s testimony demonstrated that the School System was aware of

specific problems with the classroom’s acoustics and appearance as early as March 1990, neither the

School System’s March 1990 IEP nor its May 1990 IEP proposed specific modifications to the

classroom. Sewell testified that such modifications were included as a “goal” on both the March

1990 IEP and the May 1990 IEP, but she acknowledged that the School System provided no specifics

as to how these problems would be remedied. Sewell first defended this failure to provide specifics

on the fact that, at the March 1990 M-Team meeting, Chris Refseth had not yet visited Beverly

Mainland’s classroom. Sewell later defended the School System’s failure to make specific proposals

on the fact that the School System had “not yet had permission to serve Kyle, so there [had] been no

implementation of any of the goals written, so there would have been no changes.” When Chris

Refseth testified, she indicated that she was qualified and willing to make recommendations to the

School System concerning any necessary classroom modifications. The School System presented

no testimony, however, as to any specific modifications that Refseth had recommended or that the
School System had agreed to implement to make the classroom a more appropriate instructional

setting for Kyle.

On June 17, 1991, the ALJ entered a final order that granted prospective injunctive

relief in that it directed the School System to make available an IEP containing the components

outlined in the ALJ’s order, the School System’s proposed May 1990 IEP, and the School System’s

correspondence and representations to the Cliftons. In this regard, the ALJ’s final order directed the

School System to “provide the necessary related services, including but not limited to, modification

of the facilities to create an acoustically treated environment” and, further, to “provide qualified

professionals to ‘appropriately’ address [Kyle’s] hearing, speech, and language impairments.” 

In addition to directing the School System to develop an appropriate IEP, the ALJ’s

final order granted the Cliftons’ claim for reimbursement for the expense of educating Kyle at the

Bill Wilkerson Center from March 23, 1990, Kyle’s fourth birthday, until June 17, 1991, the date

of the ALJ’s order. Despite the Cliftons’ success on their reimbursement claim, the ALJ declared

the School System to be the prevailing party in this action. The ALJ supported this ruling by

reasoning that “present placement,” rather than reimbursement, was “the issue of paramount

concern” in this litigation. 

As permitted by the IDEA, the School System sought review of the ALJ’s final order

by filing a petition in the trial court. The record indicates that the trial court affirmed the ALJ’s

decision by a judgment entered on October 2, 1992; however, the October 1992 judgment does not

appear in the record. The School System then appealed the trial court’s judgment to this court. 

The first time this case was appealed, this court remanded it for further proceedings

because the October 1992 judgment was not a final judgment. See Tenn. R. App. P. 3(a). In April

1994, the trial court entered a final judgment, and this case again was appealed. On the second

appeal to this court, rather than deciding the case on the merits, this court vacated the trial court’s

judgment and remanded the case for the ALJ to supplement his final order with additional findings

of fact and conclusions of law in accordance with Tennessee Code Annotated section 27-3-128
7

Section 27-3-128 authorizes the appellate court

in all cases, where, in its opinion, complete justice cannot be had by

reason of some defect in the record, want of proper parties, or oversight

without culpable negligence, remand the cause to the court below for

further proceedings, with proper directions to effectuate the objects of

the order, and upon such terms as may be deemed right.

Tenn. Code Ann. § 27-3-128 (1980).

(1980).7

 Wilson County Sch. Sys. v. Clifton, No. 01A01-9604-CH-00152, 1996 WL 656109, at *5

(Tenn. Ct. App. Nov. 13, 1996) (no perm. app. filed). In November 1997, the ALJ entered a revised

final order that attempted to address some of the concerns expressed in this court’s opinion. 

Upon review of the ALJ’s revised final order, the trial court ruled that the

preponderance of the evidence supported the ALJ’s findings that the School System’s IEP was

inappropriate and that the Bill Wilkerson Center placement was appropriate. Accordingly, the trial

court upheld the ALJ’s decision to grant the Cliftons’ claim for reimbursement in the amount of

$12,058.32. On the other hand, the trial court did not uphold the ALJ’s finding that the School

System was the prevailing party. The court reasoned that the Cliftons prevailed on a significant issue

in this litigation when the ALJ granted their claim for reimbursement. In a subsequent order, the trial

court awarded attorney’s fees to the Cliftons’ attorneys in the total amount of $18,069.25. The court

denied the Cliftons’ request for prejudgment interest. Both parties appealed the trial court’s

judgment, and this appeal is again before this court for review. 

III. The Cliftons’ Claim for Reimbursement Under the IDEA

After carefully reviewing the evidence presented at the administrative hearing, we

agree with the trial court that the evidence supports the ALJ’s findings that the School System’s IEP

was inappropriate and that the Bill Wilkerson Center placement was appropriate. The Cliftons’

witnesses testified to numerous physical problems with the proposed classroom, including the high

ceiling, the loud heating and cooling unit, the lack of carpeting, drapery, corkboard, and other soundabsorbing materials, and the plethora of visually stimulating materials. Although the School System

claimed to have addressed these problems in its final IEP, notably, the School System’s own

witnesses acknowledged that the May 1990 IEP failed to propose any specific modifications to the
8

In this regard, we note that Tennessee’s own special education statutes provided that

[p]hysical aspects and specifications of schools, classrooms and

other facilities for, or likely to be used by, [children with disabilities],

shall be related to their special physical, educational and psychological

needs. To this end, school districts, special education services

associations, agencies of the state and its subdivisions, and any private

persons or entities constructing, renovating or repairing facilities with or

aided by public funds, which facilities are expressly intended for or are

likely to be used by [children with disabilities], shall plan, locate, design,

construct, equip and maintain them with due regard for the special

capabilities, [disabilities] and requirements of the [children with

disabilities] to be accommodated therein.

Tenn. Code Ann. § 49-10-103(f) (1990).

classroom.8

 The only concrete suggestion made by the School System was that the teacher could

turn off the heating and cooling unit while Kyle was in the classroom. The School System did not

indicate how it proposed to control the classroom’s climate if the heating and cooling unit was turned

off during the six hours per day that Kyle was scheduled to be in the classroom.

In addition to attesting to the classroom’s physical deficiencies, the Cliftons’

witnesses testified that the classroom’s curriculum and instructional methods were inappropriate for

Kyle. Beverly Mainland’s comprehensive development classroom offered a general curriculum for

special education students. The classroom’s curriculum was not designed for hearing-impaired or

dyspraxic children, and it did not emphasize the speech and language instruction needed by Kyle.

Moreover, Mainland had not received formal training or certification in the areas of deaf education

or speech and language pathology.

In our view, the deficiencies attested to in the present case are similar to those

observed in T.H. v. Board of Education, 55 F. Supp. 2d 830, 838-43 (N.D. Ill.), appeal dismissed,

202 F.3d 275 (7th Cir. 1999). In that case, T.H. was diagnosed as having autism. T.H., 55 F. Supp.

2d at 836. At the administrative hearing, the evidence showed that T.H. had “the capacity to acquire

new skills when the educational environment [was] free from distractions and when there [was]

continuous intervention by an adult trained to focus [T.H.’s] attention on an appropriate exercise.”

Id. at 837-38. The school district proposed placing T.H. in a cross-categorical classroom four

mornings per week for sessions lasting two and one-half hours each. Id. at 839.
Autism experts who testified at the hearing opined that the cross-categorical

classroom was not an appropriate setting for T.H.’s training. Id. at 839. One expert, Dr. Luce,

testified that early training for children with autism should take place in a setting where distractions

were minimized. Id. T.H.’s mother testified that T.H. was bothered by singing and loud noises, and

she was convinced “that the highly stimulating classroom setting would make it difficult for [T.H.]

to learn.” Id.

The early childhood program in which the school district proposed placing T.H. was

not specifically designed to meet the needs of autistic children. Id. at 838. Another expert, Dr.

Lorber, visited the school district’s early childhood classrooms. Id. During his visits, Dr. Lorber

observed “that the teachers could not describe or easily discuss their approach to teaching autistic

children.” Id. In fact, the school district “did not present a single early childhood teacher with

significant training in the education of autistic children.” Id. at 838 n.9.

Yet another expert, Dr. Leventhal, testified that T.H. needed “a fairly high

student/teacher ratio and . . . a lot of complex and coordinated intervention between language and

communication people, behavioral management people as well as social skills development folks.”

Id. at 839. In Dr. Leventhal’s opinion, the placement proposed by the school district lacked

sufficient individual programming and structure to benefit T.H. Id. at 840.

In the present case, the evidence showed that Kyle needed the benefits of an

acoustically-treated classroom containing minimal visual distractions. Instead, the School System

proposed placing Kyle in a special education classroom that the School System’s own witnesses

acknowledged was not acoustically-treated, was equipped with an intermittently noisy heating and

cooling unit, and was highly decorated.

Educators who testified on behalf of the Cliftons at the hearing opined that the

proposed classroom setting was not appropriate for Kyle. In addition to the noise and visual

distractions,these educators observed that the instructional methods employed in the classroom were

designed for special education students, but not for hearing-impaired students. Whereas the
9Although the evidence supported the Cliftons’ claim that the School System’s May 1990 IEP

was inappropriate for Kyle, we reject the Cliftons’ contention that the IEP was inadequate because it

lacked “any intermediate objective goal sheets for charting the child’s progress.” In evaluating this type

of alleged procedural deficiency, courts have adopted a harmless error analysis. See Cleveland HeightsUniv. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399 (6th Cir. 1998); Doe v. Defendant I, 898 F.2d

1186, 1190-91 (6th Cir. 1990); Moubry v. Independent Sch. Dist. 696, 9 F. Supp. 2d 1086, 1102-04 (D.

Minn. 1998); Logue v. Shawnee Mission Pub. Sch. Unified Sch. Dist. No. 512, 959 F. Supp. 1338, 1349

(D. Kan. 1997), aff’d, 153 F.3d 727 (10th Cir. 1998). Here, the Cliftons’ brief fails to explain how they

were prejudiced by the IEP’s failure to include “intermediate objective goal sheets.”

10In its decision, the court cited a 1992 policy guidance of the United States Department of

Education, which suggested that public school systems have not adequately considered “the unique

communication and related needs” of many deaf children in developing IEP’s for them. Brougham, 823

F. Supp. at 17 (quoting Deaf Students Education Services Policy Guidance, 57 Fed. Reg. 49,274

(1992)).

comprehensive development classroom offered a multi-subject curriculum,Kyleneeded a curriculum

that consistently emphasized and reinforced his speech and language development.

Moreover, the classroom teacher, BeverlyMainland, had limited experience teaching

hearing-impaired children, and she was not certified in deaf education or speech and language

pathology. Mainland candidly admitted that she had no experience teaching dyspraxic children and

that she was unfamiliar with instructional methods used to teach children with dyspraxia. In

contrast, the evidence showed that none of these problems existed at the Bill Wilkerson Center and

that Kyle’s placement there was appropriate.9 

By way of comparison, we note that the IEP approved in Brougham v. Town of

Yarmouth, 823 F. Supp. 9 (D. Me. 1993), contained many of the elements that the witnesses testified

were lacking in this case. In that case, the evidence showed that Travis, a thirteen-year-old deaf

student, had been delayed by as much as four or five years in his speech and language development

due to his hearing impairment. Brougham, 823 F. Supp. at 11. The IEP proposed by the school

system included placement in a classroom of seven children, two of whom also had hearing

impairments. Id. at 18. The classroom teacher was a teacher of the deaf who taught speech and

language to high school and middle school students. Id. at 18 n.9. The teacher’s instructional

methods emphasized language development so that Travis would receive “the intensive linguistic

focus” that he required. Id. at 17. After considering these elements, the court concluded that the

proposed IEP satisfied the IDEA’s requirement of providing a free appropriate education to Travis.

Id. at 18.10
Similarly, in Bonnie Ann F. v. Calallen Independent School District, 835 F. Supp.

340, 347 (S.D. Tex. 1993), aff’d, 40 F.3d 386 (5th Cir. 1994), cert. denied, 514 U.S. 1084 (1995),

a case involving a three-year-old hearing-impaired child, the court approved a placement that

contained the following components. Along with five other hearing-impaired children, Bonnie

attended Regional Day School for the Deaf classes at a public elementary school. Bonnie Ann F.,

835 F. Supp. at 343. The classroom teacher held certificates in speech pathology, speech and hearing

therapy, and deaf education. Id. The major elements of Bonnie’s educational program were

language development, speech development, auditory training,

preschool readiness activities, and motor development.

. . . [The teacher] provided Bonnie with individual auditory

training and speech therapy for a short period of time during the

school day. She then reinforced and integrated these lessons

throughoutthe day. Language development training was incorporated

in daily class activities.

Id. This classroom speech and language training was supplemented with the services of one of the

school district’s speech therapists, who provided Bonnie with individual speech and language

therapy for forty-five minutes per week. Id. After reviewing these components, the court held that

“the IEP developed for Bonnie through the IDEA’s procedures was reasonably calculated to enable

her to receive educational benefits.” Id. at 347.

On appeal, the School System insists that, contrary to the ALJ’s explicit findings as

to the impropriety of the May 1990 IEP, the ALJ implicitly must have found the IEP to be

appropriate because he ordered the School System to implement a new IEP that contained the same

components. We disagree. The ALJ’s final order did not merely order the School System to

implement an IEP containing the same components as its May 1990 IEP. The ALJ also ordered the

School System to include in its IEP the components outlined in the ALJ’s final order. Specifically,

the ALJ ordered the School System to “provide the necessary related services, including but not

limited to, modification of the facilities to create an acoustically treated environment” and, further,

to “provide qualified professionals to ‘appropriately’ address [Kyle’s] hearing, speech, and language

impairments.” Inasmuch as these components related directly to the deficiencies in the May 1990

IEP identified by the Cliftons’ witnesses, we conclude that the ALJ’s order required the School
11At the administrative hearing, the evidence indicated that, at the beginning of the 1990-91

school year, a more appropriate classroom placement developed when the School System added a third

early intervention classroom to its curriculum. This class was taught by Dorothy Swan, who had a dual

endorsement from the state of Tennessee in both special education and speech and language pathology. 

The classroom was in a new school building, and its acoustic design was more appropriate for hearingimpaired children than the classroom proposed in the May 1990 IEP. In fact, one of the students enrolled

in the class was hearing-impaired. The evidence was undisputed, however, that the School System never

offered the Cliftons an IEP proposing this placement for Kyle. 

System to provide important services that exceeded the level of services proposed by the School

System.11

IV. The Cliftons’ Request for Attorney’s Fees Under the IDEA

In light of our affirmance of the trial court’s judgment ordering the School System

to reimburse the Cliftons the sum of $12,058.32 for Kyle’s education at the Bill Wilkerson Center

from March 1990 to June 1991, we likewise affirm the trial court’s decision to award the Cliftons’

attorney’s fees incurred in pursuing this action. The IDEA authorizes the trial court, in its discretion,

to award reasonable attorney’s fees to the parents of a disabled child when they are the prevailing

party in an IDEA action. See 20 U.S.C.A. § 1415(i)(3)(B) (West 2000). To be a “prevailing party”

under the IDEA, the parents must succeed on at least one significant issue in the litigation, and they

must obtain at least some relief on the merits of their claim. Payne v. Board of Educ., 88 F.3d 392,

397 (6th Cir. 1996); Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993). One way to demonstrate such

success is by obtaining an enforceable judgment against the school district. Payne, 88 F.3d at 397.

Thus, the trial court, in its discretion, may award attorney’s fees to parents who prevail on a claim

for reimbursement under the IDEA. See, e.g., M.C. v. Voluntown Bd. of Educ., 56 F. Supp. 2d 243,

260 (D. Conn. 1999); Gonzalez v. Puerto Rico Dep’t of Educ., 969 F. Supp. 801, 815 (D.P.R. 1997);

Doolittle v. Meridian Joint Sch. Dist. No. 2, 919 P.2d 334, 343 (Idaho 1996).

In the present case, the primary issue before the ALJ and the trial court was the

propriety of the IEP proposed for Kyle by the School System. In order to prevail on their claim for

reimbursement, the Cliftons had the burden of proving by a preponderance of the evidence that the

proposed IEP was “inadequate,” “inappropriate,” or “improper” and, further, that Kyle’s placement

at the Bill Wilkerson Center was “proper” or “appropriate.” Renner v. Board of Educ., 185 F.3d

635, 642 (6th Cir. 1999); Doe v. Metropolitan Nashville Pub. Sch., 133 F.3d 384, 387 (6th Cir.),
cert. denied, 119 S. Ct. 47 (1998); Wise v. Ohio Dep’t of Educ., 80 F.3d 177, 184 (6th Cir. 1996);

Doe v. Board of Educ., 9 F.3d 455, 458 (6th Cir. 1993), cert. denied, 511 U.S. 1108 (1994); Babb v.

Knox County Sch. Sys., 965 F.2d 104, 108 (6th Cir.), cert. denied, 506 U.S. 941 (1992); Doe v.

Defendant I, 898 F.2d 1186, 1191 (6th Cir. 1990). The Cliftons met this burden and, consequently,

obtained a judgment ordering the School System to reimburse them for Kyle’s past educational

expenses at the Bill Wilkerson Center. Under these circumstances, we agree with the trial court’s

ruling that the Cliftons were the prevailing party, and we hold that the trial court did not abuse its

discretion in awarding the Cliftons’ attorney’s fees incurred in pursuing this action.

We also affirm the trial court’s decision as to the amount of attorney’s fees to be

awarded. Like the trial court’s decision to award attorney’s fees, the determination of the amount

of attorney’s fees to be awarded is largely within the discretion of the trial court. Chaille v. Warren,

635 S.W.2d 700, 703 (Tenn. Ct. App. 1982); Preston Lincoln-Mercury, Inc. v. Kilgore, 525 S.W.2d

155, 158 (Tenn. Ct. App. 1974). In the court below, the School System raised specific objections

to some of the hours claimed by the Cliftons’ attorneys in their affidavits submitted in support of the

Cliftons’ request for attorney’s fees. The trial court’s final judgment awarding the Cliftons’

attorney’s fees indicated that the court properly considered each of these objections but that,

ultimately, the court found the claimed hours to be reasonable. 

On appeal, the School System again contends that the hours claimed by the Cliftons’

attorney’s were excessive. Our review of this issue is hampered, however, by the fact that the record

on appeal contains neither a transcript of the hearing on the Cliftons’ request for attorney’s fees nor

the affidavits submitted by the Cliftons’ attorneys in support of their fee request. Pursuant to the

Tennessee Rules of Appellate Procedure, the appellant bears the burden of preparing “a transcript

of such part of the evidence or proceedings as is necessary to convey a fair, accurate and complete

account of what transpired with respect to those issues that are the bases of appeal.” Tenn. R. App.

P. 24(b); see also Johnson v. Hardin, 926 S.W.2d 236, 239 (Tenn. 1996); Nickas v. Capadalis, 954

S.W.2d 735, 742 (Tenn. Ct. App. 1997). In the absence of the attorney’s affidavits or any other

evidence on this issue, we are unable to conclude that the trial court abused its discretion in awarding

the Cliftons’ attorney’s fees in the full amount requested.
12The parties have not raised, and we do not decide, the issue of when postjudgment interest

began to accrue in this case. See Tenn. Code Ann. § 47-14-122 (1995) (providing that “[i]nterest shall be

computed on every judgment from the day on which the jury or the court, sitting without a jury, returned

the verdict without regard to a motion for a new trial”).

V. The Cliftons’ Request for Prejudgment Interest

Having affirmed the trial court’s awards for reimbursement and attorney’s fees, we

now turn to the final issue raised in this appeal: whether the trial court erred in denying the Cliftons’

request for prejudgment interest on both the reimbursement award and the attorney’s fee award. As

a general rule, a claimant’s entitlement to prejudgment interest under a federal statute is a question

of federal law. See Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 224 (1st Cir. 1996);

United States ex rel. Bartec Indus., Inc. v. United Pac. Co., 976 F.2d 1274, 1279 (9th Cir. 1992),

amended on other grounds, 15 F.3d 855 (9th Cir. 1994); United States ex rel. Georgia Elec. Supply

Co. v. United States Fidelity & Guar. Co., 656 F.2d 993, 997 (5th Cir. 1981); United States ex rel.

Balf Co. v. Casle Corp., 895 F. Supp. 420, 429 (D. Conn. 1995). If the federal statute is silent on

the issue, however, courts may look to state law for guidance. Cottrill, 100 F.3d at 224-25; United

Pac., 976 F.2d at 1279; USF&G, 656 F.2d at 997; Casle Corp., 895 F. Supp. at 429.

Under Tennessee law, trial courts are authorized to award prejudgment interest as an

element of damages “in accordance with the principles of equity.” Tenn. Code Ann. § 47-14-123

(1995).12 In Myint v. Allstate Ins. Co., 970 S.W.2d 920 (Tenn. 1998), our supreme court explained

that an award of prejudgment interest under this statute

is within the sound discretion of the trial court and the decision will

not be disturbed by an appellate court unless the record reveals a

manifest and palpable abuse of discretion. . . . This standard of

review clearly vests the trial court with considerable deference in the

prejudgment interest decision. Generally stated, the abuse of

discretion standard does not authorize an appellate court to merely

substitute its judgment for that of the trial court. Thus, in cases where

the evidence supports the trial court’s decision, no abuse of discretion

is found.

Myint, 970 S.W.2d at 927 (citations omitted).
In addition to clarifying the standard to be applied in prejudgment interest cases, the

supreme court set forth several principles to guide trial courts in exercising their discretion to award

or deny prejudgment interest:

Foremost are the principles of equity. . . . Simply stated, the court

must decide whether the award of prejudgment interest is fair, given

the particular circumstances of the case. In reaching an equitable

decision, a court must keep in mind that the purpose of awarding the

interest is to fully compensate a plaintiff for the loss of the use of

funds to which he or she was legally entitled, not to penalize a

defendant for wrongdoing. . . .

In addition to the principles of equity, two other criteria have

emerged from Tennessee common law. The first criterion provides

that prejudgment interest is allowed when the amount of the

obligation is certain, or can be ascertained by a proper accounting,

and the amount is not disputed on reasonable grounds. . . . The

second provides that interest is allowed when the existence of the

obligation itself is not disputed on reasonable grounds.

Id. (citations omitted).

In accordance with these principles, we conclude that the trial court did not abuse its

discretion in denying the Cliftons’ request for prejudgment interest. TheCliftons convincingly argue

that they have been unfairly denied the use of a substantial sum of money throughout the nine-year

history of this litigation. The Cliftons’ loss of use of these funds, however, was merely one of the

factors that the trial court was required to consider in deciding the Cliftons’ request for prejudgment

interest. Following the Myint decision, the appellate courts of this state have recognized that a trial

court does not abuse its discretion in denying a claim for prejudgment interest where the defendant

reasonably disputes either the amount of the obligation or the existence of the obligation itself. See,

e.g., Alexander v. Inman, 974 S.W.2d 689, 698 (Tenn. 1998); Brandt v. BIB Enters., Ltd., 986

S.W.2d 586, 595 (Tenn. Ct. App. 1998); see also Newton v. Cox, 954 S.W.2d 746, 748-49 (Tenn.

Ct. App. 1997).

The record in the present case reveals that, although ultimately unsuccessful, the

School System reasonably disputed the existence of its obligation to reimburse the Cliftons for

Kyle’s placement at the Bill Wilkerson Center and, concomitantly, its obligation to pay the Cliftons’

attorney’s fees. Despite this court’s affirmance of the trial court’s judgment ordering the School
13The record also reveals that the School System reasonably disputed the amount of attorney’s

fees to be awarded. In its final judgment, the trial court implicitly, if not explicitly, acknowledged the

reasonableness of the School System’s objections to the amount of fees requested when the court

observed that the objections “focuse[d] on entries that border[ed] on excessive time.” Despite these

objections, the trial court found the fees requested “to be within the range of reasonableness,” and it

awarded the Cliftons’ attorneys the full amount requested.

This case illustrates why, in our view, the award of prejudgment interest on attorney’s fees is

problematic. As in the present case, the reasonableness of the attorney’s fees to be awarded often is

disputed, and the amount of the award is not established with certainty until entry of the final judgment. 

Even in cases where the amount is not disputed, attorney’s fees may be gradually incurred over an

extended period of time. In the present case, for example, the Cliftons’ attorney’s fees were incurred

over a nine-year period. In such cases, the problem arises as to when prejudgment interest would begin

to accrue.

System to reimburse the Cliftons, we believe that the evidence at the administrative hearing

presented a close question as to whether the School System’s proposed IEP was appropriate for Kyle.

This belief has been reinforced by an extensive review of IDEA case law, during which we were

constantly reminded that the IDEA provides no more than a “basic floor” of educational opportunity

for disabled children and that it does not require public school districts to provide the “best” possible

program. Board of Educ. v. Rowley, 458 U.S. 176, 201 (1982); Wise v. Ohio Dep’t of Educ., 80

F.3d 177, 185 (6th Cir. 1996); Doe v. Board of Educ., 9 F.3d 455, 459 (6th Cir. 1993), cert. denied,

511 U.S. 1108 (1994); Cordrey v. Euckert, 917 F.2d 1460, 1473-74 (6th Cir. 1990), cert. denied,

499 U.S. 938 (1991). Under the circumstances of this case, we conclude that the School System

reasonably disputed its obligations to the Cliftons under the IDEA, and we decline to disturb the trial

court’s decision to deny the Cliftons’ request for prejudgment interest.13

The trial court’s judgment is affirmed, and this cause is remanded for further

proceedings consistent with this opinion. Costs of this appeal are taxed to the Wilson County School

System, for which execution may issue if necessary.

_____________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S.

______________________________

HIGHERS, J.