08/26/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 14, 2022 Session
ERIKA JEAN SCHANZENBACH v. DENISE SKEEN
Appeal from the Chancery Court for Sullivan (Bristol) County
No. 20-CB-27096 William K. Rogers, Chancellor
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No. E2020-01198-COA-R3-CV
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This appeal concerns the trial court’s denial of a petition for an order of protection based
upon allegations of stalking. This is one of four cases in which the petitioner sought an
order of protection against four women. We vacate the trial court’s determination and
remand for sufficient findings of fact and conclusions of law to facilitate appellate review.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Vacated; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R. FRIERSON,
II and KRISTI M. DAVIS, JJ., joined.
W. Andrew Fox, Knoxville, Tennessee, and Martin A. Cannon (pro hac vice) and Michael
G. McHale (pro hac vice), Omaha, Nebraska, for the appellant, Erika Jean Schanzenbach.
Devon Chase Muse, Johnson City, Tennessee, and Adam Massey (pro hac vice) and Carrie
Sophia Zoubul (pro hac vice), Brooklyn, New York, for the appellee, Denise Skeen.
OPINION
I. BACKGROUND
Erika Jean Schanzenbach (“Petitioner”) has frequented the Bristol Regional
Women’s Center (“the Clinic”) for approximately seven years as a pro-life advocate,
commonly referred to as a sidewalk counselor. She holds signs, attempts to speak with
women entering the clinic, and speaks through a “small amplifier” to share her beliefs.
Petitioner, who is employed elsewhere, stands outside the Clinic on the roadside following
her workday on a weekly basis.
Denise Skeen (“Denise1”), along with Cheryl Hanzlik, Alethea Skeen, and Rowan
Skeen (collectively “Respondents”), also frequent the Clinic. Their purported purpose is
to counter Petitioner’s efforts and offer support for those entering the Clinic.
Petitioner and Respondents had several encounters that led Petitioner to file
petitions for orders of protection in the Chancery Court against all four women in January
2020. She alleged, as pertinent to this appeal, that Denise harassed her by shouting at her
through a bullhorn, following her along the sidewalk, standing directly in her face, stepping
on her feet, repeatedly touching her and her signage, telling her to go away, issuing verbal
insults that were sexual in nature, kicking her sign into the street, and shouting while she
attempted to pray.
The trial court did not find cause to issue temporary ex parte orders of protection
and likewise denied Petitioner’s request to consolidate the four cases. Instead, the court
consolidated the hearings in the interest of judicial economy but maintained each petition
as a separate action. Petitioner filed amended petitions recounting new instances of
stalking, requesting orders of protection that would prohibit Respondents from contacting
her, coming close to her, causing intentional damage to her property, and interfering with
her efforts to assist women at the Clinic.
The consolidated hearing occurred on August 4, 2020, at which time Petitioner
submitted lengthy video evidence of her interactions with Respondents for the court’s
consideration. As to Denise, Petitioner alleged that Denise engaged in several instances of
stalking from June 2019 through April 2020. Petitioner claimed that Denise made sexually
suggestive comments and gestures toward her, kicked her sign, yelled into her face,
invaded her personal space, followed her, and repeatedly stepped on her feet throughout
the pertinent time period. Denise continued in her behavior, despite Petitioner’s requests
for her to stop. These events precipitated a final interaction in which Denise pushed her
umbrella into Petitioner’s head, prompting police intervention and a citation for assault on
May 27. The trial court considered this last incident as alleged evidence of Petitioner’s
continued need for an order of protection.
Respondents did not submit evidence for the court’s consideration.
The trial court denied the petition against Denise, stating that Petitioner failed to
establish her allegations of stalking within the meaning of Tennessee Code Annotated
section 39-17-315(a)(4).2 The trial court dismissed the action without prejudice.
1
We will refer to Respondent Denise by her first name throughout the opinion solely for the
purpose of clarity given the involvement of her family members in the other actions.
2
‘“Stalking” means a willful course of conduct involving repeated or continuing harassment of
another individual that would cause a reasonable person to feel terrorized, frightened, intimidated,
threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened,
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This timely appeal followed. Petitioner moved to consolidate the four actions on
appeal. This court, like the trial court, denied the motion to consolidate but set the
individual cases for a consolidated hearing in the interest of judicial economy.
II. ISSUE
The Petitioner cites a number of issues that are easily summarized into the following
sole dispositive issue: Whether sufficient evidence was presented to establish Petitioner’s
allegations of stalking in the form of harassment at the Clinic.
III. STANDARD OF REVIEW
The trial court may issue an order of protection if “the petitioner has proven the
allegation of domestic abuse, stalking or sexual assault by a preponderance of the
evidence.” Tenn. Code Ann. § 36-3-605(b). “Proving an allegation by a preponderance of
the evidence requires a litigant to convince the trier-of-fact that the allegation is more likely
true than not true.” McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 825 n.19 (Tenn.
Ct. App. 2005) (citing Austin v. City of Memphis, 684 S.W.2d 624, 634-35 (Tenn. Ct. App.
1984)).
We review this non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d). This presumption of correctness applies only to findings of fact
and not to conclusions of law. Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn.
1996). The trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008);
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and shall
not be disturbed absent clear and convincing evidence to the contrary. Morrison v. Allen,
338 S.W.3d 417, 426 (Tenn. 2011).
To the extent that this case requires that we construe statutes, our review is also de
novo. Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911-12 (Tenn. 2000) (“Issues of
statutory construction are questions of law and shall be reviewed de novo without a
presumption of correctness.”). In construing statutes, we keep the following guidance in
mind:
Our resolution of this issue is guided by the familiar rules of statutory
construction. Our role is to determine legislative intent and to effectuate
intimidated, threatened, harassed, or molested[.]”
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legislative purpose. The text of the statute is of primary importance, and the
words must be given their natural and ordinary meaning in the context in
which they appear and in light of the statute’s general purpose. When the
language of the statute is clear and unambiguous, courts look no farther to
ascertain its meaning. When necessary to resolve a statutory ambiguity or
conflict, courts may consider matters beyond the statutory text, including
public policy, historical facts relevant to the enactment of the statute and the
entire statutory scheme. However, these non-codified external sources
“cannot provide a basis for departing from clear codified statutory
provisions.”
Dallas v. Shelby Cnty. BOE, 603 S.W.3d 32, 37 (Tenn. Ct. App. 2019) (quoting Mills v.
Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012) (citations omitted)).
IV. DISCUSSION
Petitioner claims that the trial court’s denial of relief for Denise’s behavior at the
Clinic was error when the statute provides that any victim of stalking can obtain relief.
Petitioner cites the history of the legislative provisions in support of her claim, noting that
the pertinent statutes were expanded beyond the bounds of domestic disputes to include
victims of stalking, who may or may not have any prior relationship with the perpetrator.
Orders of protection are statutorily governed by Tennessee Code Annotated section
36-3-601, et seq. Prior to 2005, orders of protection were available only to those in
domestic relationships, whether related by marriage or otherwise involved in a relationship
with the perpetrator. The stated purpose of the statutes was
to recognize the seriousness of domestic abuse as a crime and to assure that
the law provides a victim of domestic abuse with enhanced protection from
domestic abuse. A further purpose of this chapter is to recognize that in the
past law enforcement agencies have treated domestic abuse crimes
differently than crimes resulting in the same harm but occurring between
strangers. Thus, the General Assembly intends that the official response to
domestic abuse shall stress enforcing the laws to protect the victim and
prevent further harm to the victim and the official response shall
communicate the attitude that violent behavior is not excused or tolerated.
Tenn. Code Ann. § 36-3-618. In 2005, the General Assembly amended the statutes to also
protect victims of sexual assault and stalking, regardless of the relationship between the
victim and perpetrator. 2005 Tennessee Laws Pub. Ch. 381 (S.B. 645). However, the
legislative purpose and intent of the statutes remained, despite numerous updates to the
statutes and the inclusion of sexual assault and stalking victims. See generally Tenn. Code
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Ann. § 36-3-618 (reflecting no substantive changes since 1995).
Pursuant to Section 36-3-602(a), a stalking victim may seek relief from the courts
pursuant to Title 36 when such person “has been subjected to, threatened with, or placed
in fear of, domestic abuse, stalking, or sexual assault.” “‘Stalking victim’ means any
person, regardless of the relationship with the perpetrator, who has been subjected to,
threatened with, or placed in fear of the offense of stalking, as defined in [section] 39-17-
315.” Tenn. Code Ann. § 36-3-601(11). Section 39-17-315(a)(4) defines stalking as
a willful course of conduct involving repeated or continuing harassment of
another individual that would cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested, and that actually
causes the victim to feel terrorized, frightened, intimidated, threatened,
harassed, or molested.
Similarly,
“Harassment” means conduct directed toward a victim that includes, but is
not limited to, repeated or continuing unconsented contact that would cause
a reasonable person to suffer emotional distress, and that actually causes the
victim to suffer emotional distress. Harassment does not include
constitutionally protected activity or conduct that serves a legitimate
purpose[.]
Tenn. Code Ann. 39-17-315(a)(3). Lastly,
(5) “Unconsented contact” means any contact with another person that is
initiated or continued without that person’s consent, or in disregard of that
person’s expressed desire that the contact be avoided or discontinued.
Unconsented contact includes, but is not limited to, any of the following:
(A) Following or appearing within the sight of that person;
(B) Approaching or confronting that person in a public place or on private
property;
(C) Appearing at that person’s workplace or residence;
(D) Entering onto or remaining on property owned, leased, or occupied by
that person;
(E) Contacting that person by telephone;
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(F) Sending to that person mail or any electronic communications,
including, but not limited to, electronic mail, text messages, or any other type
of electronic message sent using the internet, websites, or a social media
platform; or
(G) Placing an object on, or delivering an object to, property owned,
leased, or occupied by that person[.]
Citing PLT v. JBP, No. 346948, 2019 WL 7206134 (Mich. Ct. App. Dec. 26, 2019),
Petitioner claims that she was entitled to an order of protection under the circumstances
presented here. In PLT, the appellate court in Michigan upheld a trial court’s grant of an
order of protection against a pro-life advocate for his behavior toward an abortion clinic’s
employee. 2019 WL 7206134, at *7. The respondent argued that his protests were
constitutionally protected conduct serving a legitimate purpose, which cannot constitute
harassment within the meaning of the Michigan statutes. Id. at *3. In determining whether
to uphold the order, the court in PLT noted that an individual’s right to free speech must
be considered alongside the right for others “to be let alone.” Id. at *3-4 (citing Hill v.
Colorado, 530 U.S. 703, 716-17 (2000)). Acknowledging that while “[p]ublic protests
regarding abortion, whether in support or opposition, serve legitimate political purposes,”
the court held that respondent’s actions “exceeded the permissible scope of the activity”
and violated the petitioner’s right to be let alone. Id. at *4. The court noted that the
respondent went beyond his political message and targeted the petitioner, directing his
comments toward her when other workers were present. Id. The court continued,
Respondent’s conduct violated petitioner’s right to be let alone. Petitioner
repeatedly told respondent that he was scaring her and to get away from her.
Respondent ignored these requests. Accordingly, respondent was aware that
his conduct was having a negative impact on petitioner. Despite this
knowledge, respondent continued to approach petitioner. Consequently, the
trial court could reasonably find, as it did, that respondent was no longer
simply seeking to share his political viewpoint with someone who might be
receptive to his beliefs. Instead, respondent was antagonizing an individual
who knew his views, did not share them, did not wish to hear them, and had
repeatedly asked him to stop because he was scaring her. Such conduct was
no longer constitutionally protected because respondent violated petitioner’s
right to be let alone when he repeatedly attempted to press his ideas on an
unwilling participant. Respondent’s conduct no longer served a legitimate
purpose because it exceeded the scope of his general anti-abortion protest,
having moved from advocacy to threatening conduct. Accordingly,
respondent’s behavior instead became that of an individual continually
accosting someone who repeatedly asked him to stop and told him that he
was scaring her. Thus, because respondent’s conduct did not serve a
legitimate purpose, it was not constitutionally protected.
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Id.
Here, Petitioner argues that the reverse scenario was present in this case, namely
Denise’s conduct moved from legitimate advocacy protected by her right to free speech to
threatening conduct, despite Petitioner’s repeated requests to leave her alone. Denise
responds that the court’s opinion in PLT is neither binding nor applicable. She
distinguishes her behavior by claiming that there was no evidence of assault presented but
that there were moments caught on video where she confirmed that she was not touching
Petitioner. She claims that her use of foul language and positioning next to Petitioner was
simply not enough to sustain the petition.
In its oral pronouncement from the bench, the court explained that it did not believe
that an order of protection was the proper recourse for the Petitioner. The court further
stated that Petitioner failed to establish the requisite mental distress necessary to sustain
the petition. However, the order entered by the trial court was a general form order
typically entered in domestic violence actions. The order does not contain specific findings
of fact and conclusions of law in support of the trial court’s decision. While the court’s
pronouncement from the bench contained some of the court’s reasoning, such reasoning
may not be considered when the oral ruling was not incorporated into the final order. See
generally Sparkle Laundry & Cleaners, Inc. v. Kelton, 595 S.W.2d 88, 93 (Tenn. Ct. App.
1979) (“A Court speaks only through its written judgments, duly entered upon its minutes.
Therefore, no oral pronouncement is of any effect unless and until made a part of a written
judgment duly entered.”). Tennessee Rule of Civil Procedure 52.01 requires that “[i]n all
actions tried upon the facts without a jury, the court shall find the facts specially and shall
state separately its conclusions of law and direct the entry of the appropriate judgment.”
When a trial court does not explain the basis of its ruling, we are hampered in performing
our reviewing function, and we may remand the case with instructions to make requisite
findings of fact and conclusions of law and enter judgment accordingly. See In re Noah J.,
2015 WL 1332665 at *5–6 (Tenn. Ct. App. Mar. 23, 2015). Given the attempted
application of the domestic violence statutes in a factual scenario that is unique, we vacate
the ruling and remand this matter to the trial court to issue sufficient findings of fact and
conclusions of law to facilitate our review.
V. CONCLUSION
For the reasons stated above, we vacate the decision of the trial court. The case is
remanded for further proceedings consistent with this opinion. Costs of the appeal are
taxed equally to the parties, Erika Jean Schanzenbach and Denise Skeen.
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_________________________________
JOHN W. MCCLARTY, JUDGE
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