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In re March 9

Court of Appeals of Tennessee, Jackson

May 26, 2017

IN RE MARCH 9, 2012 ORDER

          Session April 26, 2017

         Direct Appeal from the Circuit Court for Shelby County No. CT-004568-15 Gina C. Higgins, Judge

         This appeal involves an attempt to set aside an allegedly void order pursuant to Rule 60.02(3) of the Tennessee Rules of Civil Procedure. The trial court dismissed the petition for multiple reasons, including res judicata. We affirm and remand for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded

          Larry E. Parrish, Memphis, Tennessee, for the appellant, William Goetz.

          John Lewis Wardlaw, Memphis, Tennessee, for the appellee, Donel Autin and Dana Autin.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin and Kenny Armstrong, JJ., joined.

          MEMORANDUM OPINION [1]

          BRANDON O. GIBSON, JUDGE.

         I. Facts & Procedural History

         This appeal is the latest chapter in a long-running battle between former neighbors. In 2010, Donel and Dana Autin sued William Goetz for defamation, slander, and intentional infliction of emotional distress. During discovery, the trial court granted the Autins' motion for a protective order prohibiting dissemination of certain information and documents. On March 9, 2012, the Autins filed notice that they intended to voluntarily dismiss their complaint without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01(1). That same day, the trial court entered an order dismissing the case without prejudice "subject to the following orders of the Court." The trial court ordered that the case would remain sealed and that documents previously produced would remain subject to the court's prior protective order, as the protective order would "remain in full effect."

         Unfortunately, this did not end the parties' disputes or litigation.[2] In May 2015, Goetz filed a motion to modify the trial court's protective order, arguing that circumstances had changed such that it was no longer necessary, as the Autins had moved out-of-state. In December 2015, the trial court entered an order denying Goetz's motion to modify the protective order. The trial court found that the case had been effectively closed for three years, that Goetz did not appeal the trial court's order extending the protective order, and that his motion to modify should be denied based on res judicata. Goetz timely filed a notice of appeal to this Court.

         Meanwhile, however, Goetz had instituted the present proceeding on November 2, 2015, by filing what he designated as an "In Rem Petition to Vacate March 9, 2012 'Order.'" The In Rem Petition listed a different docket number than that used in the original defamation case and the motion to modify filed therein. The In Rem Petition stated that it was "an independent action" to assert claims of right pursuant to Tennessee Rule of Civil Procedure 60.02(3), which addresses void judgments. The style of the case was listed as "In re: March 9, 2012 'Order.'" The In Rem Petition stated that the March 9, 2012 order was the "res" of the in rem proceeding and that no parties were named as defendants or served with summons. The In Rem Petition asked the court to declare the March 9, 2012 order void ab initio on the basis that the circuit court lacked jurisdiction to adjudicate any matters from the moment the Autins' written notice of nonsuit was presented to the court, with the exception of entering a ministerial pro forma order confirming "the already effectuated dismissal." In other words, the In Rem Petition asserted that the Autins' defamation case was effectively dismissed at the moment the notice of nonsuit was delivered, and therefore, the trial court lacked authority to include a ruling in its order of dismissal that the protective order would remain in effect. The In Rem Petition also contended that the trial court's March 9, 2012 order extending the protective order was essentially a permanent injunction that restrained Goetz in violation of his constitutional rights to free speech. The In Rem Petition requested that the March 9, 2012 order be declared void and stricken from the record of the court.[3]

         Goetz filed a motion for judgment on the In Rem Petition based on the pleadings. The motion stated that the Autins had been provided with actual notice of the In Rem Petition but insisted that it was not necessary to name them as parties due to the "in rem" nature of the proceeding. On June 23, 2016, the trial court entered an order granting Goetz's motion for judgment on the pleadings.[4] The order stated, "The Court finds that no opposition was had to Petitioner's Motion for Judgment on the Pleadings. Accordingly, Petitioner's uncontroverted Motion is granted and the Clerk is ordered to release this case from 'Under Seal.'"

         Five days later, the Autins filed a "Limited Appearance . . . and Emergency Motion to Stay" the trial court's June 23 order granting judgment on the pleadings on the In Rem Petition. The Autins thereby informed the court that they intended to file a motion to intervene, a motion to alter or amend the June 23 order granting judgment on the pleadings, and a motion to dismiss the In Rem Petition. The Autins noted that they were not served with process and asserted that they were indispensable parties to the action. The Autins also directed the trial court's attention to the motion to modify that Goetz had previously filed under the original docket number, attacking the same March 9, 2012 protective order. The Autins noted that just months earlier, on December 16, 2015, the trial court had denied Goetz's motion to modify the protective order, yet the June 23, 2016 order granting judgment on the pleadings set aside that same order. The Autins argued that the trial court's June 23 order granting judgment on the pleadings would render the trial court's previous ruling ...


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