Sandi D. Jackson v. Mitchell B. Lanphere

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 18, 2011

SANDI D. JACKSON v. MITCHELL B. LANPHERE

Appeal from the Chancery Court for Sumner County

No. 2010D 184 Tom E. Gray, Chancellor

Judge John Gwin by Interchange

No. M2010-01401-COA-R3-CV - Filed August 12, 2011

The petitioner for an order of protection appeals the trial court’s decision dismissing her

petition. While we reject most of the assignments of error identified by the petitioner, we

agree that the trial court erred in failing to make findings of fact and conclusions of law as

now required by Tenn. R. Civ. P. 41.02. We therefore vacate the trial court’s order and

remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated

and Remanded

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,

P.J., M.S,. and R ICHARD H. D INKINS, J., joined.

Sandi D. Jackson, Hendersonville, Tennessee, Pro Se.

Debra L. Dishmon, Lebanon, Tennessee, for the appellee, Mitchell B. Lanphere.

OPINION

F ACTUAL AND P ROCEDURAL B ACKGROUND

Sandi Jackson filed a petition for orders of protection against Mitchell Lanphere in

Sumner County Chancery Court on June 4, 2010. Ms. Jackson filed the petition on behalf

of herself and the parties’ minor child, Keely. Ms. Jackson’s petition alleged that, on May

30, 2010, Mr. Lanphere sent threatening text messages and caused Ms. Jackson and the child

to fear for their safety. This occurred after Mr. Lanphere allegedly failed to pick Keely up

on May 29, 2010, for his court-ordered weekend parenting time. The chancery court entered

an ex parte order of protection, and the case was set to be heard on June 16, 2010.

On June 15, 2010, Mr. Lanphere filed a motion to dismiss or to transfer jurisdiction

and venue. Because there were pending custody proceedings in the Sumner County Juvenile

Court, Mr. Lanphere argued that the case should be transferred to that court. He further

asserted that Ms. Jackson’s petition for an order of protection in chancery court was “an

attempt to forum shop and circumvent” the order of the juvenile court.1 Attached to Mr.

Lanphere’s motion was an April 2010 agreed order from the Sumner County Juvenile Court

setting out the parties’ parenting schedule.

The parties appeared for the hearing in chancery court on June 16, 2010. Ms. Jackson

represented herself. According to the statement of the evidence, no proof was heard. The

court denied Mr. Lanphere’s motion to dismiss and did not dissolve the order of protection.

In an order entered on June 18, 2010, the court stated that there were matters pending before

Judge Gwin, sitting by interchange in the Sumner County Juvenile Court, that a trial was set

for June 24, 2010, and that Judge Gwin had “agreed to hear this matter by interchange with

the Chancery Court of Sumner County, Tennessee at Gallatin.” The court then ordered that

the case be heard by interchange by Judge Gwin.

At the hearing on June 24, 2010, Ms. Jackson was represented by counsel. Judge

Gwin heard testimony from the police officer who responded to Ms. Jackson’s call at 2:14

a.m. on May 30, 2010, and from Ms. Jackson. Ms. Jackson also called as a witness a private

investigator whom she had previously hired to do a background check on Mr. Lanphere. Mr.

Lanphere objected on the basis that the private investigator, whom Ms. Jackson hired in

2004, would not offer testimony relevant to the current proceedings. The court agreed with

Mr. Lanphere’s objection and the witness was excused. After Ms. Jackson had presented her

proof, Mr. Lanphere moved to dismiss the order of protection. Judge Gwin announced from

the bench that there was not sufficient proof for an order of protection and that the petition

was dismissed.2

On June 28, 2010, Ms. Jackson filed, pursuant to Tenn. R. Civ. P. 60.02, a motion to

reconsider the June 16, 2010 order and to “regrant [sic] ex parte order of protection” on the

grounds that a fraud had been perpetrated upon the court. Ms. Jackson also filed a notice of

appeal from the June 18, 2010 order and a notice of appeal from the June 24, 2010 decision

(for which the order had not yet been entered). In her motion to reconsider, Ms. Jackson

1

Mr. Lanphere’s motion erroneously refers to the General Sessions Court of Wilson County. The

confusion arises from the fact that Judge John Gwin of the Wilson County General Sessions Court was sitting

by interchange in the Sumner County Juvenile Court.

2

Judge Gwin then proceeded to consider matters pending between the parties in the Sumner County

Juvenile Court, including Mr. Lanphere’s petition for emergency custody.

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asserted, in part, that Mr. Lanphere moved to transfer the order of protection out of chancery

court “for the purpose of a change in jurisdiction and venue from a Court that would be

familiar only with the facts of the instant case to a Court that Father’s counsel believed so

strongly would dismiss the ex parte order of protection that she motioned this Court to

transfer the order . . . .”

On July 6, 2010, Judge Gwin entered his order from the June 24, 2010 hearing in

Sumner County Chancery Court. The court held that Ms. Jackson “failed to prove by a

preponderance of the evidence the allegations contained in the Petition for Orders of

Protection.” Costs were taxed against Ms. Jackson.

Ms. Jackson filed on July 6, 2010, another notice of appeal from the June 18, 2010

order providing that Judge Gwin would hear the order of protection and a notice of appeal

from the denial of her order of protection.

On July 12, 2010, a hearing was held before Chancellor Gray on Ms. Jackson’s

motion to reconsider. In an order entered on July 23, 2010, the court found that Ms.

Jackson’s motion was not well-taken and denied it. The court stated that since Ms. Jackson

filed a notice of appeal on June 28, 2010, it lacked jurisdiction to consider a Rule 60 motion.

The court went on to deny allegations by Ms. Jackson that counsel for Mr. Lanphere had

made ex parte statements to the court.

S TANDARD OF R EVIEW

We review a trial court’s findings of fact de novo with a presumption of correctness

unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). We review

questions of law de novo with no presumption of correctness. Nelson v. Wal-Mart Stores,

Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

With respect to issues regarding the admission or exclusion of evidence, we review

the trial court’s decision under an abuse of discretion standard. Brown v. Crown Equip.

Corp., 181 S.W.3d 268, 273 (Tenn. 2005); Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121,

131 (Tenn. 2004). Under this standard, we are required to uphold the trial court’s ruling “as

long as reasonable minds could disagree about its correctness.” Caldwell v. Hill, 250 S.W.3d

865, 869 (Tenn. Ct. App. 2007). So, “we are not permitted to substitute our judgment for that

of the trial court.” Id. An appellate court “will set aside a discretionary decision only when

the trial court has misconstrued or misapplied the controlling legal principles or has acted

inconsistently with the substantial weight of the evidence.” White v. Vanderbilt Univ., 21

S.W.3d 215, 223 (Tenn. Ct. App. 1999). We review a trial court’s discretionary decision to

determine: “(1) whether the factual basis for the decision is supported by the evidence, (2)

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whether the trial court identified and applied the applicable legal principles, and (3) whether

the trial court’s decision is within the range of acceptable alternatives.” Id.

A NALYSIS

We begin by noting that Ms. Jackson is representing herself on appeal and that she

represented herself during a portion of the proceedings below. With respect to pro se

litigants, we have previously stated the following guiding principles:

Parties who decide to represent themselves are entitled to fair and equal

treatment by the courts. The courts should take into account that many pro se

litigants have no legal training and little familiarity with the judicial system.

However, the courts must also be mindful of the boundary between fairness to

a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the

courts must not excuse pro se litigants from complying with the same

substantive and procedural rules that represented parties are expected to

observe.

Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (citations omitted).

In her brief, Ms. Jackson sets out numerous issues, including such questions as

whether the Sumner County Juvenile Court had subject matter jurisdiction over the parties

and whether the Wilson County General Sessions Court had personal jurisdiction over the

parties. These questions reflect a misunderstanding of the interchange process. Ms.

Jackson’s order of protection was brought in the Sumner County Chancery Court and

remained in that court. Chancellor Gray, who issued the ex parte order of protection, entered

an order on June 18, 2010, providing that the case would be heard by interchange by Judge

Gwin. Thus, Judge Gwin, a judge of the Wilson County General Sessions Court who was

hearing cases in the Sumner County Juvenile Court by interchange,3 sat by interchange as

chancellor in the Sumner County Chancery Court in order to hear and decide this case.

In light of this procedural clarification, we consider the issues raised to be as follows:

(1) Whether the chancery court erred in considering Mr. Lanphere’s motion to

dismiss.

3

According to the appellee’s brief, Judge Gwin was appointed by the Administrative Offices of the

Court to hear by interchange the custody case between the parties in Sumner County Juvenile Court.

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(2) Whether the chancery court erred in ordering that Judge Gwin would hear

the order of protection.

(3) Whether Judge Gwin erred by failing to make specific findings of fact and

conclusions of law in his order dismissing the petition for an order of

protection.

(4) Whether Judge Gwin applied the wrong burden of proof in dismissing the

order of protection.

(5) Whether Judge Gwin erred in dismissing the order of protection.

(6) Whether Judge Gwin erred in excluding the testimony of Ms. Jackson’s

private investigator witness.

(7) Whether Judge Gwin erred in assessing court costs to Ms. Jackson.

1.

Ms. Jackson first argues that the trial court erred in considering Mr. Lanphere’s

motion to dismiss or transfer jurisdiction and venue on the ground that he did not provide her

with the five-day notice required under Tenn. R. Civ. P. 6.04(1). The certificate of service

on the motion indicates that the motion was sent to Ms. Jackson’s attorney in the pending

juvenile court proceedings on June 15, 2010, and given to Ms. Jackson herself on June 16,

2010, the day of the hearing. We find no merit in Ms. Jackson’s argument because the

statement of the evidence does not state that she objected to the court’s consideration of the

motion. In fact, the chancellor removed such a statement from Ms. Jackson’s proposed

statement of the evidence. Moreover, since the chancellor denied Mr. Lanphere’s motion,

Ms. Jackson was not prejudiced by the court’s consideration.

2.

The next issue is whether the chancellor erred in ordering that Judge Gwin would hear

the order of protection by interchange. There appear to be two main aspects to Ms. Jackson’s

argument. First, she asserts that Chancellor Gray should have had a hearing on her order of

protection on June 16, 2010, instead of continuing the matter for Judge Gwin to hear it on

June 24, 2010. Second, she argues that Judge Gwin could not properly hear the case for

jurisdictional reasons.

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As to the first argument, Ms. Jackson takes the position that, pursuant to Tenn. Code

Ann. § 36-3-605(b), the chancellor was required to hold a hearing within 15 days of the

service of the ex parte order of protection. Tenn. Code Ann. § 36-3-605(b) states, in

pertinent part:

Within fifteen (15) days of service of such order on the respondent under this

part, a hearing shall be held, at which time the court shall either dissolve any

ex parte order that has been issued, or shall, if the petitioner has proved the

allegation of domestic abuse, stalking or sexual assault by a preponderance of

the evidence, extend the order of protection for a definite period of time, not

to exceed one (1) year, unless a further hearing on the continuation of such

order is requested by the respondent or the petitioner; in which case, on proper

showing of cause, such order may be continued for a further definite period of

one (1) year, after which time a further hearing must be held for any

subsequent one-year period. Any ex parte order of protection shall be in effect

until the time of the hearing, and, if the hearing is held within fifteen (15) days

of service of such order, the ex parte order shall continue in effect until the

entry of any subsequent order of protection issued pursuant to § 36-3-609.

In 1997, the Supreme Court construed a predecessor version of Tenn. Code Ann. § 36-3-

605(b) that required a 10-day time limit for holding a hearing but also included the same

language used in the current version that, “Any ex parte order of protection shall be in effect

until the time of the hearing.” Kite v. Kite, 22 S.W.3d 803, 804-05 (Tenn. 1997). After

examining the statute’s legislative history, the Court concluded that “[t]he ten day hearing

requirement is, therefore, merely a limitation on the duration of an ex parte protective order.”

Id. at 806. The Court held that this provision was not a limitation on the court’s jurisdiction

to conduct a hearing after the ten-day time period had passed. Id.

In the present case, we likewise conclude that the chancery court retained jurisdiction

to hear Ms. Jackson’s order of protection petition after the 15-day period had passed and was

not required to hold the hearing on June 16, 2010.4

As to Ms. Jackson’s second argument, we have previously explained that Chancellor

Gray did not transfer the order of protection to another court but merely ordered that Judge

Gwin would hear the case by interchange. Pursuant to Tenn. Code Ann. § 17-2-206, a trial

judge sitting by interchange “shall have the same power and jurisdiction as the judge or

chancellor in whose place the judge or chancellor is acting.”

4

The issue of the ex parte order’s validity at the time of the June 24, 2010 hearing has not been raised

by Ms. Jackson.

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The remaining question is whether Judge Gwin, a Wilson County general sessions

judge, could properly sit by interchange for Chancellor Gray, chancellor in Sumner County.

This court is not aware of any statute authorizing this arrangement for interchange. Tenn.

Code Ann. § 17-2-202 provides that state trial court judges have a duty to interchange with

one another under certain circumstances. A general sessions judge is not, however, a state

trial court judge. See State ex rel. Winstead v. Moody, 596 S.W.2d 811, 813-14 (Tenn. 1980).

Tenn. Code Ann. § 17-2-208 provides that general sessions and juvenile court judges may

interchange “with each other.” Moreover, Tenn. Code Ann. § 17-2-209 provides that, under

certain circumstances and in certain counties, the general sessions judge may sit by

interchange for the circuit judge or chancellor exclusively in uncontested divorce cases or

divorce cases based on irreconcilable differences. We know of no general statute allowing

a general sessions judge to sit by interchange for a circuit judge or chancellor in other cases.5

Moreover, this case involves a general sessions judge from one county sitting for a chancellor

in a different county.

Based upon the applicable general laws, we must conclude that Judge Gwin was

without actual authority to act as chancellor by interchange. However, we do not consider

this to constitute reversible error in this case. In Ferrell v. Cigna Property & Casualty

Insurance Co., 33 S.W.3d 731, 739 (Tenn. 2000), the Supreme Court determined that the

proper procedure had not been followed when a clerk and master was appointed circuit judge

pro tem. The Court nevertheless declined to reverse the decision at issue based upon this

procedural error and found that the clerk and master acted as judge de facto. Id. The Court

cited the following description of a de facto officer:

The judicial acts of one in possession of a judicial office created and in

existence by law, under color of right, assuming and exercising the functions

of such office with a good faith belief in his right to exercise such authority,

involved and acquiesced in by the parties, the bar, court officials and the

public, are those of a de facto officer.

Id. (quoting State ex rel. Newsom v. Biggers, 911 S.W.2d 715, 718 (Tenn. 1995)). In the

present case, Judge Gwin acted as judge de facto.6 There was no objection to his

5

We are aware that there have been private acts in some counties authorizing the general sessions

judge(s) to interchange with the chancellor(s) and/or circuit court judge(s). See Crawford v. Gilpatrick, 646

S.W.2d 433, 435 (Tenn. 1983); see also Op. Tenn. Atty. Gen. 02-074 (June 12, 2002). No such private act

is at issue in this case.

6

Future cases presenting the same issue will be considered in light of this clarification concerning

the interchange of general sessions judges with circuit judges or chancellors. See Maxwell Med., Inc. v.

(continued...)

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appointment by interchange at the initial court date on June 16, 2010, or at the hearing on

June 24, 2010. (On the second date, Ms. Jackson was represented by counsel.) We therefore

conclude that the issue of Judge Gwin’s appointment was waived.7 See Dupuis v. Hand, 814

S.W.2d 340, 342 (Tenn. 1991); State Dept. of Children’s Servs. v. A.M.H., 198 S.W.3d 757,

764 (Tenn. Ct. App. 2006).

3.

Ms. Jackson argues that the trial court erred in failing to make specific findings of fact

and conclusions of law in its decision dismissing her petition for an order of protection.

In making this argument, Ms. Jackson relies on the final sentence of Tenn. R. Civ. P.

41.02(2), which provides that, when a trial court sitting without a jury grants involuntary

dismissal, “the court shall find the facts specially and shall state separately its conclusions

of law . . . .” As the Advisory Commission Comments state, the 2010 amendments to Tenn.

R. Civ. P. 41.02 made the final sentence mandatory by deleting the requirement that a party

request written findings of fact and conclusions of law. This change brought the rule into

conformity with Tenn. R. Civ. P. 52.01, which was amended in 2009 to delete the

requirement of a request for findings of fact and conclusions of law in all actions tried

without a jury. Tenn. R. Civ. P. 41.02 cmt. 3; Tenn. R. Civ. P. 52.01 cmt. 3.

Mr. Lanphere responds to Ms. Jackson’s argument by pointing to the following

statements made by the trial court at the hearing:

[T]he Court has to consider a “history of violence, a pattern of conduct, the

petitioner’s fear of retaliation, the respondent’s access to weapons, the

respondent’s history of stalking, the respondent’s criminal record, the

respondent’s use of drugs and alcohol, the respondent’s threats of suicide, the

respondent’s history of mental illness, threats to attack the petitioner or the

child or other family members, threats to animals, threats or attacks on one or

more members of the family or the household.”

And the Court finds that in this case the proof fails, no order of protection is

warranted, the Petition will be dismissed.

6

(...continued)

Chumley, 282 S.W.3d 893, 898 (Tenn. Ct. App. 2008) (declining to find de facto judge where proper

procedures for appointment of special judge were not followed despite clear mandates of Ferrell).

7

We note, also, that Tenn. Code Ann. § 36-3-601 gives general sessions courts as well as circuit and

chancery courts jurisdiction over orders of protection. Thus, this was not a proceeding with which Judge

Gwin lacked familiarity.

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These statements do not, however, constitute findings of fact or conclusions of law. Rather,

the court stated its understanding of applicable legal principles but failed to outline how the

court found those principles to apply to the facts of this case.

In light of the trial court’s failure to follow the mandatory requirements of Tenn. R.

Civ. P. 41.02 and 52.01, we must vacate the trial court’s determination regarding the order

of protection and remand the matter for entry of findings of fact and conclusions of law.

Furthermore, we decline to address issues 4 and 5, regarding the burden of proof and the

propriety of the court’s determination, since any review of those issues must be predicated

on the applicable findings of fact and conclusions of law.8 Moreover, given our conclusions

regarding the propriety of Judge Gwin’s interchange in chancery court, we direct that any

further proceedings be conducted by another, appropriately selected, judge.

4.

Ms. Jackson asserts that the trial court erred in excluding the testimony of Mitchell

Davis, a private investigator.

As stated above, a trial court’s decisions regarding the exclusion of evidence are

reviewed under the abuse of discretion standard. Brown, 181 S.W.3d at 273. When Mr.

Davis initially took the stand, he stated that he had been hired by Ms. Jackson in 2004 to do

a background check on Mr. Lanphere. Mr. Lanphere objected to the relevance of this

testimony based on the remoteness in time. Ms. Jackson argued that the testimony was

relevant to her state of mind based upon what Mr. Davis told her. The trial court agreed with

Mr. Lanphere and excused the witness.

We find no abuse of discretion in the trial court’s decision to exclude Mr. Davis’s

testimony. Moreover, pursuant to Tenn. R. Evid. 103(a)(2), a reviewing court may not

predicate error upon the trial court’s exclusion of evidence unless “the substance of the

evidence” is provided to the court. The party appealing the exclusion of error must provide

the appellate court with an offer of proof; otherwise, an appealing court generally will not

consider the issue. See Dossett v. City of Kingsport, 258 S.W.3d 139, 145 (Tenn. Ct. App.

2007). No offer of proof was provided in this case.

5.

8

In the interest of judicial economy, we have chosen to address the remaining issues to avoid the

necessity of another appeal as to issues not directly bearing on the correctness of the trial court’s decision

on the order of protection itself.

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The final issue raised by Ms. Jackson concerns the assessment of court costs to her

by the trial court.

In its July 6, 2010 order dismissing her petition, the trial court ordered that court costs

be taxed to Ms. Jackson. Ms. Jackson argues that this assessment contravenes Tenn. Code

Ann. § 36-3-617(a), which provides as follows:

Notwithstanding any other law to the contrary, no victim shall be required to

bear the costs, including any court costs, filing fees, litigation taxes or any

other costs associated with the filing, issuance, registration, service, dismissal

or nonsuit, appeal or enforcement of an ex parte order of protection, order of

protection, or a petition for either such order, whether issued inside or outside

the state. If the court, after the hearing, issues or extends an order of

protection, all court costs, filing fees, litigation taxes and attorney fees shall be

assessed against the respondent.

Prior to a 2009 amendment, Tenn. Code Ann. § 36-3-617(a) used the words “no petitioner”

instead of “no victim” in the first sentence. The 2009 amendments also added the words

“dismissal or nonsuit.” 2009 T ENN. P UB. A CTS ch. 263.

In Pearson v. Pearson, No. E2009-00856-COA-R3-CV, 2010 WL 2432053, at *1

(Tenn. Ct. App. June 17, 2010) (no Tenn. R. App. P. 11 application filed), this court was

asked to decide whether, prior to the 2009 amendment, Tenn. Code Ann. § 36-3-617(a)

permitted a trial court to assess court costs against the petitioner after the petition was

dismissed. Citing the “unequivocal language” of Tenn. Code Ann. § 36-3-617(a), the court

reasoned that the statute did not give a trial court discretion to assess court costs against a

petitioner seeking an order of protection. Id. at *2.

In Lewis v. Rader, No. E2010-00724-COA-R3-CV, 2010 WL 3853285 (Tenn. Ct.

App. Sept. 30, 2010) (no Tenn. R. App. P. 11 application filed), a case decided under the

current statute, the eastern section of this court reached the same result as it did in Pearson.

The court in Lewis concluded that the change of wording in the new statute was “of no

consequence.” Id. at *3. We must respectfully disagree with the court’s decision in Lewis.

When construing a statute, courts “assume that the legislature chose the words of the statute

purposely, and that the words chosen ‘convey some intent and have a meaning and a purpose’

when considered within the context of the entire statute.” Maino v. The Southern Co., Inc.,

253 S.W.3d 646, 649 (Tenn. Ct. App. 2007) (quoting Eastman Chem. Co. v. Johnson, 151

S.W.3d 503, 507 (Tenn. 2004)). Substituting the word “victim” for “petitioner” indicates

that the person seeking the order of protection must be found by the court to have been

subjected to domestic abuse in order to trigger the prohibition against the assessment of costs.

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The legislative history of 2009 T ENN. P UB. A CTS ch. 263 supports this construction.

The legislative debates indicate that the purpose of changing “petitioner” to “victim” was to

give trial judges the discretion to assess court costs against a petitioner if the court

determines that he or she is not actually a victim of domestic abuse. H. J UDICIARY C OMM.,

C RIM. P RAC. & P ROC. S UBCOMM., H.B. 268, 106th General Assem. (Tenn. 2009) (statement

of Rep. Watson, bill sponsor); S. S ESS., S.B. 192, 106th General Assem. (Tenn. 2009)

(statement of Senator Bunch). This revision allows judges to assess court costs against

petitioners whom they determine are abusing the order of protection process. H. J UDICIARY

C OMM., C RIM. P RAC. & P ROC. S UBCOMM. (statement of Rep. Watson).

We therefore conclude that the trial court did not err in assessing court costs against

Ms. Jackson regarding her petition for an order of protection.

C ONCLUSION

For the foregoing reasons, we vacate and remand the trial court’s order of dismissal

to allow for the entry of findings of fact and conclusions of law. We reject Mr. Lanphere’s

argument that this is a frivolous appeal and that he should be awarded his attorney fees and

costs on appeal. Costs of the appeal are taxed equally between the two parties.

______________________________

ANDY D. BENNETT, JUDGE

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