IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 2000 Session
MARCINA CLARK v. NATHAN CROW
Interlocutory Appeal from the Circuit Court for Davidson County
No. 98D-2049 and 99D-1317 Marietta Shipley, Judge
No. M1999-00916-COA-R9-CV - Filed July 28, 2000
We grant this interlocutory appeal to consider a question of first impression regarding whether there
is a right to jury trial prior to the issuance of an order of protection pursuant to Tennessee Code
Annotated section 36-3-605, (hereinafter “order of protection”). Specifically, we are asked to
determine whether a party against whom an order of protection is sought is entitled to a jury trial as
a matter of right before this order is issued. After reviewing Tennessee’s constitutional and statutory
guarantees to a jury trial, we have determined that there is no right to a jury trial prior to the issuance
of an order of protection. The circuit court’s decision is affirmed and remanded for further
proceedings.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
Affirmed and Remanded
WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., and
PATRICIA J. COTTRELL, JJ., joined.
John E. Herbison, Nashville, Tennessee, for the appellant, Nathan Crow.
Jeffrey L. Levy, Nashville, Tennessee, for the appellee, Marcina Clark.
OPINION
I
This interlocutory appeal results from the trial court’s refusal to grant Respondent a jury trial
prior to the issuance of an order of protection. Petitioner/Appellee Marcina Clark (“Ms. Clark”)
originally filed a Petition for Orders of Protection with the General Sessions Court for Davidson
County on 9 July 1998, which court issued the Ex Parte Order of Protection on that same date.
Respondent/Appellant Nathaniel Crow (“Mr. Crow”) subsequently filed Respondent’s Demand for
Trial by Jury and Application for Removal of Action to Circuit Court. This matter was then
transferred to the Second Circuit Court of Davidson County on 9 July 1998; however, there were no
legal proceedings following the transfer. Ms. Clark then sought a second order of protection on 28
April 1999 in the Second Circuit Court of Davidson County, Tennessee. Mr. Crow filed an answer
and counter-claim for damages wherein he requested a jury trial prior to the issuance of the Order
of Protection. Upon motion by Ms. Clark, the lower court consolidated these two cases.
A hearing was held on 27 May 1999 regarding Ms. Clark’s petitions for orders of protection
and Mr. Crow’s demand for a jury trial. The lower court denied Mr. Crow a jury trial finding that
the legislature did not intend to provide a right to trial by jury prior to the issuance of an order of
protection. The court held that the legislature did not elect to make specific provision for a jury trial
in Tennessee Code Annotated sections 36-3-601 to 36-3-621 (“the Domestic Abuse Act”) and that
“the general right to a jury trial in chancery matters, as contained in the Tennessee Code Annotated
section 21-1-103, does not apply and Respondent’s prayer for a jury trial is respectfully denied.”
The existing Order of Protection granted to Ms. Clark was also continued in full force until final
resolution of this matter.
Thereafter, Respondent, Mr. Crow, made a motion pursuant to Tennessee Rules of Appellate
Procedure 9 for an interlocutory appeal of the circuit court’s ruling. An Order of Interlocutory
Appeal was issued by the circuit court and the request for interlocutory appeal was thereafter granted
by the Court of Appeals.
II.
The sole issue to be decided in this matter is whether Tennessee state law provides for the
right to a jury trial prior to granting an order of protection issued under the Domestic Abuse Act.
Both parties have correctly agreed that there is no constitutional right to a trial by jury in this matter
and that any right to a jury trial must be provided for by statute. It is also undisputed that in equity
a jury trial must be provided for by statute, as there is no constitutional guarantee of a trial by jury
for cases sounding in equity. Third Nat’l. Bank v. American Equitable Ins. Co., 27 Tenn. App. 249,
178 S.W.2d 915, 919 (1943). However, it is urged by Respondent, Mr. Crow, that this matter falls
under Tennessee Code Annotated section 21-1-103 which provides for a right to jury trial in
proceedings of equity. Upon review of this statute, as well as the language of the Domestic Abuse
Act and the legislative intent in enacting the Domestic Abuse Act, we find that the Domestic Abuse
Act is “excepted by law or by provision of this Code,” and, thus, is outside the statutory right to a
jury trial. Tenn. Code Ann. § 21-1-103 (1994).
A summary of the right in the State of Tennessee to have a case tried by jury can be found
in Jones v. Green, 946 S.W.2d 817 (Tenn. Ct. App. 1996).
Tenn. Const. art. I, § 6 guarantees the right to a jury trial as it existed at common law
when the Tennessee Constitution of 1796 was adopted.
Tenn. Const. art. I, § 6 does not guarantee a jury trial in every sort of case. It does
not apply to cases that could be tried without a jury prior to 1796. . . . The common
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law did not require a jury trial in equitable proceedings, proceedings in which there
were no disputed factual issues, proceedings for the punishment of small offenses,
or paternity proceedings.
The common law also did not require a trial by jury in “summary proceedings.” A
summary proceeding is one that is more speedy and informal than a customary legal
proceeding. . . .
In addition to the proceedings that did not require a trial by jury prior to 1796, Tenn.
Const. art. I, § 6 does not apply to claims or proceedings established after the
adoption of the Tennessee Constitution of 1796. Accordingly, the General Assembly
is now free to fashion new claims and remedies that do not include the use of the
jury.
Id. at 823-24 (citations omitted). Trial by jury only exists for actions at common law which were
tried by jury prior to 1796. In all other matters, the right to jury trial must be provided for by statute.
The legislature may choose to specifically include the right to jury trial in enacting new laws as it
did in its divorce laws. Tenn. Code Ann. § 36-4-113 (1996). However, such is not the case with the
Domestic Abuse Act. The only additional source of jury trial rights is under Tennessee Code
Annotated section 21-1-103 regarding matters that are inherently equitable. See Smith Co. Educ.
Ass’n v. Anderson, 676 S.W.2d 328, 336 (Tenn. 1984).
Section 21-1-103 of Tennessee Code Annotated provides: “Either party to a suit in chancery
is entitled, upon application, to a jury to try and determine any material fact in dispute, save in cases
involving complicated accounting, as to such accounting, and those elsewhere excepted by law or
provisions of this Code.” (Emphasis added). This section was interpreted by Moore v. Mitchell, 205
Tenn. 591, 329 S.W.2d 821 (1959), to contain two exceptions to the right to jury trial in equity
matters.1 The two exclusions are (1) those Code sections “expressly excepted by the provisions of
the Code” and (2) “those statutory exceptions not found in the Code.” Id. at 824. The court further
explained that these exceptions “by their very nature must necessarily be deemed inappropriate and
not a proper case to be submitted to a jury . . . unless in such case express provision for a jury trial
is made by statute.” Id. The Domestic Abuse Act is “expressly excepted” by its language and
legislative intent, and no “express provision for a jury trial is made by [this] statute” as required by
Moore. Id.
As the Domestic Abuse Act does not, on its face, provide for or exclude a jury trial, the
1
Counsel for the petitioner, Ms. Clark, makes the argument that this order of protection is a
statutory proceeding and should be regarded as an action at law, thus not falling within the area of
an inherently equitable procedure. It is further argued that since this case is not a proceeding in
equity the statutory right to a jury trial under Tennessee Code Annotates section 21-1-103 is not
applicable. Although we feel that this argument may have some merit, we choose to decide this case
on other grounds.
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legislative intent will control interpretation of this law. “[T]he statute should be construed as a
whole, giving effect to each word. . . .[W]e should and will assume that the Legislature used each
word in the statute purposely and that the use of these words conveyed some intent and had a
meaning and purpose.” Anderson Fish & Oyster Co. v. Olds, 197 Tenn. 604, 277 S.W.2d 344, 345
(1955) (citations omitted). The Tennessee Supreme Court went on to state that “in construing a
statute [we] should give it the construction which promotes the purpose and object of the Act.” Id.
The court later reiterated its standard for legislative construction.
[T]his Court is bound to construe statutes in a manner that will give effect to the
General Assembly’s intent and policy considerations. In order not to defeat the
purpose of the legislation, the Court must strictly construe exceptions to that purpose,
and give effect and meaning to every word in the body of the statute.
City of Kingsport v. Quillen, 512 S.W.2d 569, 573 (Tenn. 1974) (citations omitted).
In order to determine if the domestic abuse act is excepted from the provisions of the
statutory right to jury trial, we will follow the supreme court’s guidelines in interpreting and
construing section 36-3-605 of the Domestic Abuse Act. We believe that the language of this act
clearly conveys the legislature’s intent to provide a swift and efficient summary proceeding which
requires only a hearing in front of a judge, not a jury trial. This clear legislative intent expressly
excepts the Domestic Abuse Act from statutory right to jury trial.
First, upon looking at the terms used in the Domestic Abuse Act, we note the language used
in section 36-3-605 paragraph (a) states that the “courts” may issue an ex parte order of protection.
The legislature then, in paragraph (b), uses this same word and requires a hearing “at which time the
court shall either dissolve any ex parte order which has been issued, or shall, if the petitioner has
proved the allegations of domestic abuse by a preponderance of the evidence, extend the order of
protection for a definite period of time.” The word “court” is defined in sections 36-3-601(3) (a-e)
of the Act as “any court of record with jurisdiction over domestic relation matters and the general
sessions court.” The statute at no time defines “court” as referring to a jury or jury trial and makes
no distinction between the word “court” as used in section 36-3-605 paragraph (a) and paragraph (b).
Another important word in the statute is “hearing.” Paragraph (B) of section 36-3-605 states
that “[w]ithin fifteen (15) days of service . . . a hearing shall be held.” We must assume that every
word of this statute has meaning and purpose; therefore, we will look carefully at the legislature’s
use of the word “hearing” in this section. The legislature specifically chose the word “hearing,”
which is generally used in reference to simpler, non-jury matters heard in front of a judge, choosing
not to use the word “trial,” which generally refers to more complex proceedings in front of a jury.
The Black’s Law Dictionary definition of the word accords this understanding and defines “hearing”
as follows:
Proceeding of relative formality (though generally less formal than a trial), generally
public, with definite issues of fact or of law to be tried, in which witnesses are heard
and parties proceeded against have rights to be heard, and is much the same as a trial
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and may terminate in final order. It is frequently used in a broader more popular
significance to describe whatever takes place before magistrates clothed with judicial
functions and sitting without a jury at any stage of the proceedings subsequent to its
inception, and to hearings before administrative agencies as conducted by a hearing
examiner or an Administrative Law Judge.
Blacks Law Dictionary 367 (5th ed. 1983) (emphasis added). We believe the legislature chose to
use the word hearing to specifically provide for a summary type proceeding in front of the judge
alone, as opposed to a jury trial. The legislature was free to include a provision for a jury trial as it
did in Tennessee’s divorce statute. However, in the Domestic Abuse Act the legislature did not
include the right to jury trial and chose the word “hearing” to describe the procedure by which the
order of protection would be issued.
In addition, the legislative purpose and intent of this statute are specifically laid out in the
Code. “The purpose of this part is 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. . . . [T]he 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.” Tenn. Code Ann.
§ 36-3-618 (1996) (emphasis added). In order to promote the purpose of the Domestic Abuse Act,
as well as give effect to the intent and policy considerations, we must look carefully at what the
legislature is trying to do.
The first important purpose is to provide enhanced protection from domestic abuse. The
legislature does this by providing an expedited process by which the victim may come into a variety
of courts and, upon his or her own affidavit, obtain an order of protection. However, this initial
order will last for only fifteen days. Within those fifteen days the court is required to have a
“hearing” on the merits of this matter. This “hearing” is obviously intended to be a quick and
efficient summary proceeding to speed enforcement of the laws and help protect the victim from
further abuse.
Construing this legislation to provide for a right to jury trial would thwart this purpose of
enhanced protection. At the end of the fifteen days, the order of protection would expire until such
time as a jury trial could be had. We think it obvious that the impossibility of a jury trial within
fifteen days of the ex parte order would exist in virtually every court. Further, those matters filed
in general session would have to be transferred to the circuit before any additional action could be
taken. This interpretation of the act would leave the victim unprotected until a jury trial could be
placed on the docket or require the victim to request an additional ex parte order of protection, which
would also require a later jury trial or consolidation with the previous matter. All this additional
transferring and maneuvering would convert the simple expedited process laid out by the legislature
into a long drawn out procedure which may take many months and would defeat the purpose of
enhanced protection contemplated by the legislature.
Likewise, another purpose set out by the legislature is to prevent further harm to the victim.
The requirement of a jury trial would leave the victim exposed after the initial fifteen day ex parte
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order expires. Although there may be means for the courts to work with the victim to provide
additional protection until such time as a jury trial can be carried out, this is clearly not the intention
of the legislature, as no provision for a delay in the “hearing” or for expiration of the order is
provided. Further, as a practical matter, no case requesting a jury trial would ever be heard in fifteen
days, and the additional motions, discovery, consolidation requests, and other legal maneuvering
which accompany a jury trial would merely be vehicles for delay and would definitely not
accomplish the legislature’s purpose of preventing further harm to the victim. The obvious intention
of the legislature is that a “hearing” be held in front of a judge within fifteen days so that this
proceeding may be kept quick and efficient in order provide enhanced protection and prevent further
harm to the victim.
III.
We affirm the judgment of the trial court finding: (1) that there is no constitutional right to
jury trial prior to the issuance of an order protection under the Domestic Abuse Act; (2) that the
Domestic Abuse Act on its face does not provide for a jury trial prior to an issuance of an order of
protection, and (3) that the legislature did not intend to include a right to jury trial prior to the
issuance of an order of protection, thus, the Domestic Abuse Act is expressly excepted from
Tennessee’s statutory right to a jury trial in equity matters. The trial court’s decision is hereby
affirmed and this case is remanded for further proceedings.
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WILLIAM B. CAIN, JUDGE
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