The Tennessee Supreme Court on Monday clarified that an appeal of an order of protection issued by a general sessions court must take place within 10 days, and the common law writ of error has been abolished.
In the case before the Supreme Court, a general sessions court entered a one-year order of protection prohibiting David New from having contact with his ex-wife, Lavinia Dumitrache, and the couple’s minor child. A Tennessee law gave Mr. New ten days to appeal the order, but he failed to file an appeal within that time. Forty-two days later, Mr. New filed a document in the chancery court titled “Petition to Enroll and Certify a Foreign Judgment and Appeal in Nature of Writ of Error.” Mr. New attached to his pleading an incomplete copy of the couple’s Texas divorce decree. He asked the chancery court to hold a new hearing and determine whether the general sessions court erred by issuing the order of protection. Mr. New also asked the chancery court to award him interim parenting time as provided in the couple’s Texas divorce decree.
Ms. Dumitrache and the minor child opposed the petition and the request for interim parenting time. They argued that the chancery court lacked subject matter jurisdiction because Mr. New had not appealed within ten days, the Texas decree was incomplete, and Tennessee had abolished the writ of error as a means of appeal. They also asked the chancery court to award attorney’s fees, relying on another law that authorizes courts to award attorney’s fees to parties who successfully defend against an appeal from an order of protection.
The chancery court agreed with Ms. Dumitrache and the minor child that the appeal was untimely, the Texas decree was incomplete, and the writ of error had been abolished. The chancery court dismissed Mr. New’s appeal for lack of subject matter jurisdiction. The chancery court also agreed that the law authorized attorney’s fees in these circumstances, and it awarded Ms. Dumitrache and the minor child attorney’s fees and costs totaling $25,398.21.
Mr. New appealed, and the Court of Appeals reversed the chancery court’s determination that it lacked subject matter jurisdiction. The Court of Appeals concluded that, although the writ of error had been abolished for some purposes, it remained a valid means of appealing a general sessions court’s judgment.
The Supreme Court granted Ms. Dumitrache’s and the minor child’s application for permission to appeal, reversed the Court of Appeals, and reinstated the judgment of the chancery court. The Supreme Court explained that the law specifically providing ten days for appealing from general sessions court orders of protection applied to Mr. New’s appeal and that his appeal was therefore untimely. The Supreme Court also explained that the law providing for a writ of error appeal, on which the Court of Appeals relied, had been abolished—first by a 1959 statute establishing a statewide system of general sessions courts, including a uniform 10-day period for appealing from general sessions court judgments, and subsequently by the 1978 adoption of the Tennessee Rules of Appellate Procedure, which abolished the writ of error as a means of appeal.
The Supreme Court also agreed with the chancery court that it could not enroll the Texas decree because one substantive page was missing. Finally, the Supreme Court reinstated the chancery court’s award of attorney’s fees. The Supreme Court explained that courts dismissing a case for lack of subject matter jurisdiction retain authority to resolve the collateral question of whether attorney’s fees should be awarded. The Supreme Court upheld the chancery court’s award of attorney’s fees to Ms. Dumitrache and the minor child because the primary focus and purpose of Mr. New’s pleading was to set aside the general sessions court’s order of protection. The Supreme Court refused to allow Mr. New to avoid responsibility for attorney’s fees by using obsolete and defective legal means to seek review of the order of protection instead of timely appealing.
To read the Supreme Court’s unanimous opinion in New v. Dumitrache et al. authored by Justice Cornelia A. Clark go to the opinions section of TNCourts.gov.