Donel Autin v. William Goetz

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 17, 2017 Session
DONEL AUTIN, ET AL. v. WILLIAM GOETZ
Appeal from the Circuit Court for Shelby County
No. CT-002531-10 Gina C. Higgins, Judge
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No. W2016-00099-COA-R3-CV – Filed February 22, 2017
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The trial court entered a protective order under Rule 26.03 of the Tennessee Rules of
Civil Procedure while the case was ongoing. After the plaintiffs filed a notice of
voluntary dismissal, the trial court entered an order confirming the dismissal and
extending the protective order ―in perpetuity.‖ The defendant did not appeal the final
order, but years later filed a motion to modify the protective order. The trial court denied
the motion as barred by the doctrine of res judicata. On appeal, the defendant argues that
the trial court lacked subject matter jurisdiction to extend the protective order after
plaintiffs nonsuited their case. As an issue of first impression, we conclude that the trial
court retained jurisdiction to extend and modify its previously entered protective order
notwithstanding the voluntary dismissal of the underlying action. We further hold that
modification of existing protective orders is authorized by the holding in Ballard v.
Herzke, 924 S.W.2d 652, 658 (Tenn. 1996); accordingly, we vacate the trial court‘s
denial of defendant‘s motion to modify and remand for reconsideration in light of our
supreme court‘s established precedent.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part; and Vacated in Part; and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which JOHN W.
MCCLARTY, and ARNOLD B. GOLDIN, JJ., joined.
Van R. Irion, Knoxville, Tennessee, for the appellant, William Goetz.
J. Lewis Wardlaw, Memphis, Tennessee, for the appellees, Donel Autin, and Dana Autin.
OPINION
BACKGROUND
On March 12, 2010, Plaintiffs/Appellees Donel Autin and Dana Autin (together
with Mr. Autin, ―Appellees‖), a married couple, filed a verified complaint against
Defendant/Appellant William Goetz. The complaint alleged that Mr. Goetz was guilty of
defaming, slandering, and intentionally inflicting emotional distress on Appellees by
falsely communicating to third parties that Mr. Autin had an adulterous sexual
relationship with Mr. Goetz‘s former live-in girlfriend (―Girlfriend‖). In addition to
damages, Appellees sought an immediate temporary restraining order, a temporary
injunction, and a permanent injunction against any further defamation.
The parties thereafter engaged in a period of discovery, which was marked by
repeated disputes over the information sought. For example, on or about September 21,
2010, Mr. Goetz filed notices to take the depositions of Mr. Autin‘s employer,
International Paper Company (―International Paper‖) and Appellees‘ church, Cordova
Presbyterian Church. Appellees responded by filing a motion to quash the subpoenas,
arguing that the goal of the subpoenas was not to gain relevant information but to further
harm Mr. Autin‘s reputation at his workplace and church. On September 22, 2010,
Appellees also filed a motion for default judgment, citing Mr. Goetz‘s failure to respond
to their complaint. On October 7, 2010, the parties entered into a consent order in which,
inter alia, Mr. Goetz agreed to withdraw the offending subpoenas and reissue them to be
more narrowly tailored and to file an answer or other responsive pleading by October 15,
2010.
The parties thereafter filed notices to take video depositions of each other. On
October 13, 2010, Appellees filed a motion for a protective order sealing the transcripts,
audio and video recordings, and exhibits of Appellees‘ depositions. In their motion,
Appellees insisted that good cause supported the request because of Mr. Goetz‘s alleged
history of defaming Appellees.
On October 15, 2010, Mr. Goetz filed a motion to dismiss Appellees‘ complaint,
which motion was accompanied by a memorandum of law. Therein, Mr. Goetz argued
that Appellees‘ complaint failed to state a claim upon which relief could be granted
because the complaint lacked sufficient specificity to support a permanent injunction and
Appellees ―have admitted the truth of the purportedly defamatory statements, thereby
negating an essential element of their purported slander claim.‖ Mr. Goetz further argued
that the conduct complained of in the complaint did not rise to the level necessary to
sustain an intentional infliction of emotional distress claim.
Mr. Goetz filed a response to Appellees‘ request for a protective order on October
27, 2010. Mr. Goetz noted that no court presiding over the case had ever granted such a
restriction despite repeated requests for a temporary restraining order by Appellees.
Therefore, Mr. Goetz contended that the requested protective order was merely another
―attempt to conceal the frivolous nature of their public[ly] sworn complaint[.]‖ On the
same day, Mr. Goetz filed the video deposition of Appellees with the trial court.
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On November 5, 2010, the trial court entered an order temporarily sealing ―the
entire case.‖ Specifically, the trial court ordered that is was:
temporarily sealing this entire case, pending a further order which may be
entered at the conclusion of this case, either sua sponte or upon motion by
one of the parties. Until the conclusion of this case, and until such time as
an order removing the seal on or related to this case is entered, all
documents filed in this matter shall be filed with the Clerk of the Circuit
Court as ―FILED UNDER SEAL.‖
Thus, the trial court indicated that the protective order could continue until both the
conclusion of the case and the entry of an order removing the seal.
Appellees filed a detailed response in opposition to Mr. Goetz‘s motion to
dismiss on November 15, 2010, denying that their complaint failed to state a claim upon
which relief could be granted. Eventually, on December 17, 2010, the trial court entered
an order denying both Mr. Goetz‘s motion to dismiss and Appellees‘ request for the
issuance of a temporary injunction. Therein the trial court noted that it had previously
admonished the parties to ―stop it, cut it out,‖ and that it was the trial court‘s belief that
any allegedly offending behavior had terminated as of that admonishment. The trial court
further indicated that it would ―hammer . . . the person creating this mess‖ with sanctions
if poor behavior continued. The trial court also set the matter for trial on February 28,
2011.
The parties‘ discovery disputes continued largely unabated. Each party filed
motions to compel directed toward the other. Appellees also filed motions to quash
subpoenas duces tecum served on AT&T Global Communications Services (―AT&T‖)
and Verizon Cellico Partnership (―Verizon‖), arguing that the requests were overly broad
and involved irrelevant information with the ―transparent goal of harming‖ Appellees. In
the alternative, Appellees requested that any information obtained as a result of the
subpoenas be placed under a protective order. On February 18, 2011, the trial court
entered two orders regarding the parties‘ discovery disputes. First, the trial court partially
granted a motion to compel filed by Appellees, requiring Mr. Goetz to timely respond to
certain outstanding discovery. Second, the trial court partially granted Appellees‘ motion
regarding the requested discovery from AT&T and Verizon by entering the following
protective order:
(a) Unless expressly provided below in Section (2)(c), all documents
or other information (hereinafter ―Documents‖) received by Counsel for
Defendant William Goetz (―Goetz‖) from AT&T and/or Verizon as a result
of the subject subpoenas and/or all summaries of the Documents bearing
any identifiable information are hereby ordered to be conspicuously marked
by such counsel and held as ATTORNEYS EYES ONLY; and shall not be
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shared by Goetz‘s counsel for any reason or in any manner with Goetz, or
anyone else, at any time during the pendency of or after the conclusion of
this matter, except in redacted form as set forth in Section 2(c);
(b) This order shall remain in effect in the event Goetz changes his
current counsel. In the event, Goetz should ever represent himself in a pro
se capacity, the Documents shall not be shared in any manner with Goetz,
or anyone else, but shall be returned to counsel for Plaintiffs Donel Autin
and Dana Autin prior to the entry of an order allowing Goetz‘s former
counsel to withdraw;
(c) Notwithstanding Section (2)(a) above, Goetz may be provided
with redacted or summarized versions of the Documents containing only
records or information generated between 2008 and 2010 related to
communications — calls, emails, text messages, communications logs —
between (as indicated by their respective telephone numbers):
i) Donel Autin and William Goetz and/or [Girlfriend];
ii) Dana Autin and William Goetz and/or [Girlfriend]; and
iii) Dana Autin and Donel Autin. (This allowance, although
consented to in this limited capacity, is not meant to be a waiver of
the spousal privilege in any other regard);
(d) Except as otherwise provided in this Order, neither Goetz nor
counsel for Goetz shall attempt to make any contact in any manner with the
persons whose identity or contact information is learned or discovered
through or by the Documents, with the exception of contacting those
persons specifically named by Plaintiffs Donel Autin and Dana Autin in the
Verified Complaint, or other persons who have been specifically identified
by the parties in formal discovery as potentially having knowledge of the
facts surrounding this case, or whose identity and contact information is
known separately from the Documents.
(e) Should counsel for Goetz be unclear about the identity of any of
the communications or communicants contained in the Documents, should
they desire further information about additional communications between
Donel Autin, Dana Autin and persons not expressly identified in Section
(2)(c), or should they desire to contact any persons restricted by this order,
counsel for Goetz shall first submit a written request to counsel for
Plaintiffs Donel Autin and Dana Autin for review and discussion. If no
agreement can be made as to the provision of such additional information
or allowance, counsel for Goetz and counsel for Plaintiffs Donel Autin and
Dana Autin shall approach the Court and submit same for the Court‘s
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review and determination as to whether such information should be
provided by Plaintiffs in expansion of this order.
(f) Following the conclusion of this action and within five days of
the entry of a final order, all of the Documents shall be returned to counsel
for Plaintiffs Donel Autin and Dana Autin.
On February 25, 2011, the trial court likewise entered an order granting in part a pending
motion to compel on behalf of Mr. Goetz. The trial court also entered an order granting a
motion to continue the trial date. The parties, however, continued to engage in discovery
disputes and the trial court entered additional orders regarding the production and
disclosure of information.
On or about March 11, 2011, Appellees filed a motion for relief from the trial
court‘s order requiring them to produce text messages, alleging that they had produced all
information that was readily available. Mr. Goetz responded in opposition on May 31,
2011. The parties entered into a consent order on July 21, 2011, allowing certain
attorneys access to the court‘s jacket but reiterating that the trial court‘s earlier protective
order remained in place. On July 26, 2011, the trial court entered an order finding that
Appellees had ―made good faith efforts to retrieve information ordered by the [c]ourt, but
have not been able to do so.‖ Because no evidence had been presented demonstrating that
Appellees ―deliberately set about to destroy‖ the cellphones at issue, the trial court ruled
that Appellees would be relieved from producing the information previously ordered. The
trial court noted, however, that its decision did not prevent Mr. Goetz from ―fully
investigating and developing a spoliation theory[.]‖
Very little activity occurred in this matter for the next six months. Eventually, on
February 29, 2012, Mr. Goetz filed a motion to dismiss Appellees‘ lawsuit on the basis of
spoliation of evidence. In his accompanying memorandum, Mr. Goetz alleged that
Appellees‘ inability to retrieve all text messages ordered to be produced by the court, as
Appellees alleged in their March 11, 2011 motion for relief from discovery, was the
result of Appellees‘ voluntary decision to ―discard‖ Mr. Autin‘s cellphone after using it
to secretly record conversations with Mr. Goetz prior to the filing of the underlying
lawsuit. Mr. Goetz alleged that because Appellees were aware that a lawsuit was
forthcoming, and in fact were the party to initiate the lawsuit, they were under a
heightened duty to preserve all relevant information. According to Mr. Goetz, Appellees‘
failure to produce all text messages as ordered was the result of spoliation and was of a
nature and character necessitating dismissal of the lawsuit. Mr. Goetz‘s motion and
memorandum were accompanied by several documents that Mr. Goetz asserted supported
his spoliation theory.
Appellees filed no response in opposition to Mr. Goetz‘s motion. Instead, on
March 9, 2012, Appellees filed a notice of voluntary nonsuit, asking that their case be
voluntarily dismissed without prejudice. On the same day, the trial court entered an order
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of voluntary dismissal without prejudice of Appellees‘ case. The trial court noted,
however, that the dismissal would be subject to the following orders:
(1) It appearing to the Court that good cause has been shown, the entire
case shall remain sealed in perpetuity, and all documents filed in this matter
shall remain under the control of the Clerk of the Circuit Court and shall
remain FILED UNDER SEAL; and
(2) All documents produced subject to the Court‘s February 18, 2010
protective order (attached hereto at Exhibit A and incorporated herein by
reference) shall remain subject to and under control of said protective order
as follows:
All documents or other information (hereinafter ―Documents‖) received by
Counsel for Defendant William Goetz (―Goetz‖) from AT&T and/or
Verizon as a result of the subject subpoenas and/or all summaries of the
Documents bearing any identifiable information, which Documents were
previously ordered to be conspicuously marked and held by counsel for
Goetz as ATTORNEYS EYES ONLY and which were ordered not to be
shared for any reason or in any manner with Goetz, or anyone else, at any
time during the pendency of or after the conclusion of this matter; shall be
returned to counsel for [Appellees] within five (5) days of the entry of this
Order, with all notes or summaries of the Documents bearing any
identifiable information to be destroyed or returned to counsel for
[Appellees] at the discretion of counsel for Goetz.
Mr. Goetz filed a motion to alter or amend the trial court‘s order of dismissal on
April 5, 2012. In his accompanying memorandum, Mr. Goetz asserted, as is relevant to
this appeal, that the trial court should lift the seal on the matter to allow Mr. Goetz to
defend himself in the court of public opinion regarding what he called Appellees‘
―frivolous and oppressive litigation.‖ In the alternative, Mr. Goetz requested that the trial
court ―limit and define the scope‖ of the protective order. Appellees responded in
opposition to Mr. Goetz‘s motion to alter or amend on April 12, 2012, arguing that the
seal was proper because good cause existed to support the trial court‘s protective order.
The trial court entered an amended order of voluntary dismissal without prejudice
on August 27, 2012. Therein, the trial court modified the seal on the proceedings to
provide as follows:
(1) It appearing to the Court that good cause has been shown, the entire
case shall remain sealed in perpetuity, and all documents filed in this matter
shall remain under the control of the Clerk of the Circuit Court and shall
remain FILED UNDER SEAL in this Court, except that the orders of this
Court (listed at Appendix A hereto) shall not be placed under the seal and
shall remain of public record; and
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(2) All documents produced subject to the Court‘s February 18, 2010
protective order, which is incorporated herein by reference, shall remain
subject to and under control of said protective order, with the following
amendment: All documents or other information received by Counsel for
Defendant William Goetz from AT&T and/or Verizon as a result of
subpoenas and/or all summaries of the documents bearing any identifiable
information, which documents were previously ordered to be conspicuously
marked and held by counsel for Goetz as ATTORNEYS EYES ONLY and
which were ordered not to be shared for any reason or in any manner with
Goetz, or anyone else, at any time during the pendency of or after the
conclusion of this matter, shall not be destroyed or returned to Plaintiffs'
counsel as previously ordered, but shall remain conspicuously marked and
held by counsel for Goetz as ATTORNEYS EYES ONLY, and shall not to
be shared for any reason or in any manner with Goetz, or anyone else, at
any time during the pendency of or after the conclusion of this matter.
Although the initial case was concluded, the parties‘ dispute was far from over.
Approximately one month prior to the initial order voluntarily dismissing the case, on
May 18, 2012. Mr. Goetz filed a separate lawsuit against Appellees and International
Paper for malicious prosecution, abuse of process, intentional infliction of emotional
distress, and civil rights violations (―malicious prosecution lawsuit‖). Therein, Mr. Goetz
alleged that Appellees‘ initial lawsuit lacked a reasonable basis and was solely meant to
obscure Mr. Autin‘s extra-marital affair with Girlfriend. According to the complaint,
International Paper was liable through the acts of Mr. Autin, as well as due to
International Paper‘s alleged wrongful and intentional concealment of cell phone records
that were relevant to the initial lawsuit. The malicious prosecution lawsuit proceeded
separately from the initial case and is not part of this appeal.
Additionally, a little over a week after the trial court entered the amended order of
dismissal, on September 4, 2012, Appellees filed a petition for contempt against Mr.
Goetz for failure to comply with the trial court‘s protective order by sending a letter to
the Shelby County District Attorney General and International Paper containing
information gleaned from discovery, which information was arguably sealed by the
ongoing protective order over the matter. Appellees argued that Mr. Goetz‘s failure to
comply with the protective order constituted willful contempt.
On the same day, Mr. Goetz responded in opposition and filed his own counter-
petition for contempt against Appellees. Mr. Goetz denied that he willfully violated the
trial court‘s protective order or that he ―propogat[ed] any documents that were sealed by
the [c]ourt.‖ On the contrary, Mr. Goetz alleged that Mr. Autin had mailed an anonymous
letter to Mr. Goetz‘s immediate family and that Appellees had released certain documents
to International Paper for purposes of the malicious prosecution case that were subject to
the trial court‘s seal in the underlying matter, both of which Mr. Goetz asserted were
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willful violations of the trial court‘s protective order. The parties thereafter engaged in
additional discovery.
Eventually, on January 4, 2013, the trial court entered an order holding that both
parties‘ contempt petitions were civil in nature, as neither ―pray[ed] for criminal
contempt.‖ However, the trial court noted that because both petitions alleged past
contemptuous acts, the trial court ruled that the allegations ―cannot be fairly the subject
of civil contempt.‖ The trial court did not dismiss the petitions, however, but ―decline[d]
to rule on‖ them, ―holding both petitions in abeyance until such time as the [c]ourt
determines whether . . . to bring sua sponte criminal contempt charges against either or
both of the parties.‖ The trial court also clarified that the ―case was sealed for a reason‖—
to protect Appellees‘ minor children—and that neither party appealed the trial court‘s
order sealing the case. As such, the trial court ruled that:
3. To say that the case is under seal and the pleadings are under seal, but
that the parties can at their discretion discuss or publicize what's in those
pleadings would render the orders of the [c]ourt null, void and of no effect.
4. With the following limited exceptions, the parties should leave what is in
this matter alone:
a. The parties are allowed to use the pleadings and other documents
from this case for the limited purpose of prosecuting and defending the
pending matter in Division 2 (No. Ct-002218-12). This limited exception to
the seal is not intended to and does not authorize the parties to use or
discuss the sealed materials outside of the Division 2 litigation.
b. The parties are allowed to use the pleadings and other documents
from this case for the limited purpose of facilitating International Paper
Co.‘s pending investigation of Donel Autin until such time as that
investigation is completed. This limited exception to the seal is limited to
International Paper ―individuals with a need to know‖ and is not intended to
and does not authorize the parties to use or discuss the sealed materials
outside of the International Paper investigation. Absent a further order of
this [c]ourt, Mr. Goetz may not speak at the International Paper Co., Inc.
annual shareholders meeting about any matters sealed in this Court
5. The [c]ourt instructs all parties that under no circumstances do they have
permission to discuss the case beyond what is expressly allowed in this
order.
The trial court‘s order was apparently sufficient to mollify the parties for some
time. On May 22, 2015, however, Mr. Goetz filed a motion to modify the trial court‘s
protective order, arguing that circumstances had changed such that allowing public
disclosure of the facts at issue would no longer create such a risk of harm to Appellees‘
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minor children. Specifically, Mr. Goetz noted that Appellees had moved out-of-state and
their children likely had knowledge of the litigation and allegations made therein.
According to Mr. Goetz, modification of the protective order was also necessary to clear
his reputation in the community, which had been harmed by Appellees‘ allegations. Mr.
Goetz also asserted that much of the information he gleaned in the case was obtained
outside of formal discovery processes and that the seal ―implicates the highest scrutiny
under the First Amendment.‖ On May 27, 2015, Mr. Goetz filed a notice setting his
motion for hearing on July 13, 2015.
Not surprisingly, Appellees filed a response in defense of the trial court‘s
protective order on June 26, 2015. Therein, Appellees characterized the protective order
as necessary to ensure that ―the pleadings, deposition testimony, and other discovery filed
or exchanged therein could be used by [Mr.] Goetz in his continuing attack on
[Appellees] and their children.‖ Appellees further argued that the trial court was well
within its power under Rule 26.03 to enter the protective order and that Mr. Goetz could
show no abuse of discretion in the trial court‘s decision. Appellees also asserted that the
trial court‘s protective order was far more limited than that portrayed by Mr. Goetz,
sealing none of the trial court‘s orders, but only sealing certain ―sensitive discovery.‖
Appellees included a list of all pleadings that they asserted should remain sealed, as well
as ―all documents exchanged or received during the conduct of discovery in this case,
including without limitation all unfiled deposition transcripts and all documents that are
specifically addressed in previous protective orders of th[e] [trial] [c]ourt.‖
On August 26, 2015, the trial court entered an order ―declin[ing] [Mr. Goetz‘s]
request for an evidentiary hearing, if at all,‖ until the conclusion of Mr. Goetz‘s malicious
prosecution case, which the trial court noted was on appeal.1 On September 17, 2015, Mr.
Goetz filed a motion for sanctions against Appellees pursuant to Rule 11 of the
Tennessee Rules of Civil Procedure. Therein, Mr. Goetz alleged that Appellees made
false allegations against Mr. Goetz in their response to his motion to modify the
protective order. As a remedy, Mr. Goetz sought attorney‘s fees not only incurred in the
modification of the protective order, but all fees ―incurred by Mr. Goetz in defense of
[Appellees‘] fraudulent lawsuit.‖ After Appellees responded in opposition to the motion
for sanctions, Mr. Goetz chose to withdraw his motion. The trial court thereafter entered
an order denying the motion as moot.
Finally, the trial court entered an order on December 16, 2015, denying Mr.
Goetz‘s request to modify the protective order. Therein, the trial court noted its earlier
ruling denying Mr. Goetz‘s request for an evidentiary hearing and further ruled:
1
Mr. Goetz‘s malicious prosecution case was dismissed by the trial court for failure to state a
claim upon which relief could be granted as to all of the asserted claims against Appellees. See Goetz v.
Autin, No. W2015-00063-COA-R3-CV, 2016 WL 537818, at *3 (Tenn. Ct. App. Feb. 10, 2016), perm.
app. denied (Tenn. June 24, 2016). International Paper was also dismissed as a party by agreement. Id. at
*1 n.1. This Court affirmed the dismissal of the claims against Appellees. Id. at *7–12. The Tennessee
Supreme Court subsequently denied permission to appeal. Id. at *1.
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1. This case was filed in 2010. The case has now been closed effectively
almost three years. There was no appeal from the rulings in this case.
2. Mr. Goetz filed a second lawsuit in Division II of the Circuit Court,
which was dismissed on motions and is now on appeal. Mr. Goetz did not
choose to file an appeal that said he disagreed with anything this [c]ourt
did. He simply chose to file a separate lawsuit.
3. This [c]ourt[‘s] rulings are res judicata, and the [c]ourt is not going to
accept the request to modify its prior rulings.
4. The pleadings were sealed[] but not the orders. The parties clarified their
intent in two orders in the litigation in 2012.
5. Mr[.] Goetz was represented by counsel[.] He has had an opportunity to
have his day in court, both in Division IV and in Division II. The [c]ourt
believes he took advantage of that opportunity to the extent he wanted to.
6. Mr. Goetz had an opportunity to file an appeal. He elected not to do that.
The [c]ourt is not inclined, three years later, to deal with those issues again.
Mr. Goetz thereafter filed a notice of appeal to this Court.2
ISSUES PRESENTED
2
While this appeal was pending, this Court entered an order directing the parties to show cause
why this appeal should not be dismissed for failure to comply with Rule 3 of the Tennessee Rules of
Appellate Procedure. Specifically, we noted that the trial court had not denied the parties‘ cross-motion
for contempt, but merely held the motion in abeyance pending resolution of Mr. Goetz‘s separate
malicious prosecution case. Rule 3 provides that if multiple parties or multiple claims are involved in an
action, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties is not final or appealable. See Tenn. R. App. P. 3. Because this Court only has subject matter
jurisdiction over final orders, except where otherwise provided, see Bayberry Assoc. v. Jones, 783
S.W.2d 553 (Tenn. 1990), we therefore questioned whether this Court properly attained jurisdiction over
the subject matter of this appeal. Both parties filed responses to this Court‘s order asserting that this Court
had subject matter jurisdiction over the trial court‘s December 16, 2015 order denying Mr. Goetz‘s
motion to modify the protective order. Mr. Goetz noted that because the contempt petitions rested on the
foundation of the protective order, his argument that the protective order was improperly entered would
affect the continued viability of the contempt petitions. Appellees essentially argued that the contempt
petitions were ancillary to the question of whether the protective order should be modified and therefore
were not a bar to this appeal. See generally Poff v. Poff, No. 01-A-01-9301-CV00024, 1993 WL 73897,
at *2 (Tenn. Ct. App. Mar. 17, 1993) (―Contempt proceedings commenced after the entry of an otherwise
final order in the underlying case should be viewed as independent proceedings. Accordingly, they are not
part of the subject matter of the underlying case and are not among the issues that must be resolved before
an otherwise final order in the underlying case will be considered final for the purposes of Tenn. R. App.
P. 3(a).‖). On September 20, 2016, this Court entered an order ruling that ―the order appealed is a final
judgment and that this Court does have jurisdiction to hear this appeal.‖ What exactly the Court attained
jurisdiction over, however, is largely the subject of this appeal.
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Mr. Goetz raises three issues, which are taken and slightly restated from his
appellate brief:
1. Does a trial court retain jurisdiction to enter a permanent injunction
in favor of a plaintiff after the plaintiff files a notice of nonsuit?
2. Did the trial court err by granting relief of a permanent injunction
after applying a legal standard properly limited to protective orders?
3. Did the trial court err by refusing to consider evidence of changed
circumstances material to an ongoing order?
DISCUSSION
I.
As an initial matter, we must first determine whether this Court has subject matter
jurisdiction to consider this appeal. Here, the underlying matter was concluded on August
27, 2012, when the trial court issued its amended order voluntarily dismissing the case
without prejudice. Neither party filed an appeal to this Court of the trial court‘s order.
Accordingly, it became final thirty days later and could no longer be appealed. See Am.
Steinwinter Inv’r Grp. ex rel. Am. Steinwinter v. Am. Steinwinter, 964 S.W.2d 569, 571
(Tenn. Ct. App. 1997) (―The 30-day rule for notices of appeal is mandatory and
jurisdictional and may not be waived[.]‖).
The Tennessee Rules of Civil Procedure provide an outlet for parties seeking relief
from a final judgment—Rule 60.02. Under Rule 60.02, parties may seek relief from a
final judgment on the basis of, inter alia, mistake, inadvertence or fraud. See Tenn. R.
Civ. P. 60.02(1)&(2). These motions must be made within one year of the date of the trial
court‘s final judgment. In addition, parties may seek relief on the basis that, inter alia, the
underlying judgment is void, that the judgment has been satisfied, or ―any other reason
justifying relief from the operation of the judgment.‖ See Tenn. R. Civ. P. 60.02(3)–(5).
These motions need only be filed ―within a reasonable time.‖ Tenn. R. Civ. P. 60.02.
Much like his decision not to appeal the August 27, 2012 judgment, Mr. Goetz
also chose not to file any Rule 60.02 motion for relief from that judgment once it became
final. Instead, he merely filed a motion seeking to alter the judgment based upon changed
circumstances. The trial court denied the motion, finding that the order at issue had
become final three years prior. Now on appeal, for the first time, Mr. Goetz raises an
additional argument: that the trial court was without jurisdiction to enter any order
continuing the protective order once Appellees filed their notice of non-suit. Because this
argument implicates the trial court‘s subject matter jurisdiction, Mr. Goetz argues that
this Court must consider the argument notwithstanding his failure to timely raise the
argument in the trial court.
We agree. As the Tennessee Supreme Court explained:
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Subject matter jurisdiction involves the court‘s lawful authority to
adjudicate a controversy brought before it. Chapman v. DaVita, Inc., 380
S.W.3d 710, 712 (Tenn. 2012); Meighan v. U.S. Sprint Commc’ns Co.,
924 S.W.2d 632, 639 (Tenn. 1996). Subject matter jurisdiction is conferred
by statute or the Tennessee Constitution; the parties cannot confer it by
appearance, plea, consent, silence, or waiver. In re Estate of Trigg, 368
S.W.3d 483, 489 (Tenn. 2012). Any order entered by a court lacking
jurisdiction over the subject matter is void. Id. Therefore, subject matter
jurisdiction is a threshold inquiry, which may be raised at any time in any
court. Id.
Johnson v. Hopkins, 432 S.W.3d 840, 843–44 (Tenn. 2013). As such, where a court acts
without subject matter jurisdiction, the resulting order is void and ―may be attacked at
any time.‖ See Turner v. Turner, 473 S.W.3d 257, 279 (Tenn. 2015) (noting some
exceptions to the general rule not argued in this case). The general rule is, of course,
equally applicable in the context of a protective order; this Court has specifically held
that a protective order entered without subject matter jurisdiction is void. See Adams v.
The Tennessean, No. M2001-00662-COA-R3-CV, 2002 WL 192575, at *6 (Tenn. Ct.
App. Feb. 7, 2002) (holding, inter alia, that the trial court‘s protective order was void
because the trial court never attained subject matter jurisdiction over the claim as no
complaint was ever filed; instead the ―lawsuit‖ was instituted merely from the filing of a
motion for protective order without any underlying lawsuit pending before the court).
Consequently, we will address Mr. Goetz‘s argument that the trial court lacked
jurisdiction to enter an order extending the protective order regardless of the fact that Mr.
Goetz failed to raise this issue in prior proceedings.
II.
To determine the effect, if any, of the Appellees‘ voluntary dismissal on the trial
court‘s jurisdiction to enter a continuing protective order in this case, we first consider
the basis for the protective order. We begin first by noting that the right to open courts is
enshrined in Tennessee‘s Constitution. See Tenn. Const. art. I, § 17 (―That all courts shall
be open[.]‖). Judicial proceedings and judicial records are therefore presumptively open.
See State v. Drake, 701 S.W.2d 604, 607–08 (Tenn. 1985); In re NHC-Nashville Fire
Litig., 293 S.W.3d 547, 561 (Tenn. Ct. App. 2008); Knoxville News-Sentinel v. Huskey,
982 S.W.2d 359, 362–63 (Tenn. Crim. App. 1998). The Tennessee Supreme Court has
cautioned that restrictions on public access to judicial records must be ―‗based on
findings that closure is essential to preserve higher values‘‖ and ―‗narrowly tailored to
serve that interest.‘‖ Drake, 701 S.W.2d at 607 (Tenn. 1985) (quoting Press-Enterprise
Co. v. Superior Court, 464 U.S. 501, 506, 104 S. Ct. 819, 824 78 L. Ed. 2d 629 (1984)).
Thus, ―[t]he common law right of access to judicial records is not absolute.‖ In re NHC-
Nashville, 293 S.W.3d at 561. Rather, ―‗[e]very court has supervisory power over its own
records and files, and access has been denied where court files might have become
vehicles for improper purposes,‘ such as promoting public scandal or publication of
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libelous statements.‖ Id. (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598,
98 S. Ct. 1306, 1312, 55 L. Ed. 2d 570 (1978)).
This Court has previously explained that the ―trial court‘s inherent supervisory
authority over its own records and files‖ as described above, served as ―the genesis of
Rule 26.03 of the Tennessee Rules of Civil Procedure.‖ In re NHC-Nashville, 293
S.W.3d at 561. Rule 26.03 provides, in relevant part:
Upon motion by a party or by the person from whom discovery is sought,
and for good cause shown, the court in which the action is pending may
make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(1) that the discovery not be had; (2) that the discovery may be had only on
specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than
that selected by the party seeking discovery; (4) that certain matters not be
inquired into, or that the scope of the discovery be limited to certain
matters; (5) that discovery be conducted with no one present except persons
designated by the court; (6) that a deposition after being sealed be opened
only by order of the court; (7) that a trade secret or other confidential
research, development, or commercial information not be disclosed or be
disclosed only in a designated way; (8) that the parties simultaneously file
specified documents or information enclosed in sealed envelopes to be
opened as directed by the court.
Accordingly, protective orders under Rule 26.03 ―limit access to certain documents or
information, or withhold documents from public view.‖ In re NHC-Nashville, 293
S.W.3d at 561 (citing 20 Am. Jur. 2d Courts § 30 (2005)). As the Tennessee Supreme
Court explained:
Protective orders are intended to offer litigants a measure of privacy, while
balancing against this privacy interest the public‘s right to obtain
information concerning judicial proceedings. In addition, protective orders
are often used by courts as a device to aid the progression of litigation and
to facilitate settlements. Protective orders strike a balance, therefore,
between public and private concerns.
Ballard v. Herzke, 924 S.W.2d 652, 658 (Tenn. 1996) (citing Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)). Furthermore, according to the Tennessee
Supreme Court: ―It is well-settled that a trial court retains the power to modify or lift a
protective order that it has entered.‖ Ballard, 924 S.W.2d at 658.
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As has previously been the case, the trial court in this case ordered ―two types of
protections‖:
Some documents were ordered by the trial court to be filed ―under seal,‖
which generally means that the document in question is filed with the court
clerk as part of the court‘s record in the case, but the clerk and the parties
are prohibited from showing the document to anyone not a party to the
lawsuit. Other documents at issue in this case were produced by one party
to the opposing party, usually in response to a discovery request, but were
never filed with the court clerk. The trial court issued a protective order
prohibiting the parties from disclosing the unfiled discovery documents
outside the range of persons described in the order.
In re NHC-Nashville, 293 S.W.3d at 561 (footnotes omitted).
Mr. Goetz does not dispute the trial court‘s authority under Rule 26.03 to enter a
protective order under appropriate circumstances in ongoing litigation.3 Instead, Mr.
Goetz argues that Appellees‘ notice of nonsuit deprived the trial court of subject matter
jurisdiction to enter any orders other than an order of voluntary dismissal. 4 In Tennessee,
the plaintiff has a right to voluntarily dismiss his or her lawsuit under certain
circumstances, which are outlined in Rule 41.01 of the Tennessee Rules of Civil
Procedure:
(1) Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of
any statute, and except when a motion for summary judgment made by an
adverse party is pending, the plaintiff shall have the right to take a
voluntary nonsuit to dismiss an action without prejudice by filing a written
notice of dismissal at any time before the trial of a cause and serving a copy
of the notice upon all parties, and if a party has not already been served
with a summons and complaint, the plaintiff shall also serve a copy of the
complaint on that party; or by an oral notice of dismissal made in open
court during the trial of a cause; . . . .
* * *
(3) A voluntary nonsuit to dismiss an action without prejudice must be
followed by an order of voluntary dismissal signed by the court and entered
by the clerk. The date of entry of the order will govern the running of
pertinent time periods.
3
Mr. Goetz does argue, however, that the trial court‘s order does not constitute a Rule 26.03
protective order, but rather a permanent injunction. Because of the limits on our subject matter
jurisdiction, we do not reach this issue, as discussed in detail, infra.
4
We use the terms ―voluntary dismissal‖ and ―nonsuit‖ interchangeably. Ewan v. Hardison Law
Firm, 465 S.W.3d 124, 141 n.3 (Tenn. Ct. App. 2014).
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Tenn. R. Civ. P. 41.01(1), (3). Consequently, ―[a] plaintiff‘s right to voluntary dismissal
without prejudice is subject to the exceptions expressly stated in Rule 41.01(1) as well as
to an implied exception which prohibits nonsuit when it would deprive the defendant of
some vested right.‖ Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004) (footnote omitted)
(citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975)). In addition,
A plaintiff is further limited to taking no more than two nonsuits without
prejudice, Tenn. R. Civ. P. 41.01(2), and nonsuit cannot be taken more than
one year after an initial dismissal. As long as none of these exceptions and
limitations serve[s] to restrict dismissal, Rule 41.01(1) affords a plaintiff
the free and unrestricted right to voluntary dismissal without prejudice
before the jury retires. Rickets v. Sexton, 533 S.W.2d 293, 294 (Tenn.
1976).
Lacy, 152 S.W.3d at 484. Thus, ―in most situations a voluntary non-suit may be taken as
a matter of right. However, such is not the case when a motion for summary judgment is
pending.‖ Clevenger v. Baptist Health Systems, 974 S.W.2d 699, 700 (Tenn. Ct. App.
1997) (emphasis added). The Tennessee Supreme Court has also held that ―under a
proper set of circumstances, the Court has the authority to permit a voluntary dismissal,
notwithstanding the pendency of a motion for summary judgment.‖ Stewart v. Univ. of
Tenn., 519 S.W.2d 591, 593 (Tenn. 1974). Here, no motion for summary judgment was
pending at the time Appellees filed their notice of nonsuit. Accordingly, neither party
disputes that Appellees were entitled to voluntarily dismiss their action as a matter of
right.
Mr. Goetz argues that, because Appellees were entitled to voluntarily dismiss their
action as of right, the trial court lost jurisdiction to enter any further orders regarding the
case. In support, Mr. Goetz cites the Tennessee Supreme Court‘s decision in Rickets v.
Sexton, 533 S.W.2d 293 (Tenn. 1976). In Rickets, the plaintiffs filed a ―motion for
voluntary dismissal‖ one day prior to the scheduled trial. Id. at 294. The trial court
―disallowed‖ the motion, finding that it would be prejudicial to one of the defendants. Id.
The Tennessee Supreme Court reversed, holding that the ability to take a nonsuit is a
―[f]ree and unrestricted‖ right belonging to the plaintiff. Id. Further, the Tennessee
Supreme Court clarified that the right to take a nonsuit is not dependent on any action of
the trial court:
The rule specifies that a plaintiff ‗shall have the right to take a voluntary
nonsuit or to dismiss an action without prejudice by filing a written notice
of dismissal at any time before the trial of a cause[.‘] This portion of the
rule is not dependent upon the determination of the trial judge. The lawyer
for the plaintiff is the sole judge of the matter and the trial judge has no
control over it. It is not necessary that he approve the action of plaintiff‘s
counsel by signing any order; nor may he nullify the rules by an order
‗disallowing‘ the nonsuit. All that is required to dismiss prior to the trial, in
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the absence of the existence of any of the exceptions above noted, is the
filing of a written notice of dismissal.
Id. (emphasis added). Thus, ―action on the part of the trial judge is simply not required
under Rickets for the plaintiff to ‗take‘ a nonsuit.‖ Ewan v. Hardison Law Firm, 465
S.W.3d 124, 131 (Tenn. Ct. App. 2014) (citing Black’s Law Dictionary 1590 (9th ed.
2009) (defining ―take,‖ as, inter alia, ―[t]o claim one‘s right under‖)). Rather, the trial
court must simply enter a ―pro forma order, filed after plaintiff‘s nonsuit, to the end that
the dismissal may be reflected upon the minutes of the court.‖ Evans v. Perkey, 647
S.W.2d 636 (Tenn. Ct. App. 1982); see also Parker v. Vanderbilt Univ., 767 S.W.2d
412, 422 n.3 (Tenn. Ct. App. 1988) (describing the necessary order as merely
―confirmatory‖).
Mr. Goetz asserts that, based upon the holding in Rickets, ―[t]he dismissal of a
nonsuited case occurs instantaneously when a plaintiff delivers the notice of nonsuit.‖
Accordingly, Mr. Goetz contends that ―the moment the nonsuit was filed[,] the [trial
court] had only very limited authority (and duty) to enter a pro forma ministerial order
acknowledging [Appellees‘] decision to nonsuit.‖ Respectfully, we cannot agree with
either contention.
First, although we do not question the well-settled principle that a plaintiff
generally has the unqualified right to take a nonsuit prior to the filing of any motion for
summary judgment by the defendant, the mere exercise of that right does not, ipso facto,
lead to the conclusion that the nonsuit is accomplished immediately upon delivery of the
notice. A similar issue was presented to the Tennessee Supreme Court in Green v.
Moore, 101 S.W.3d 415 (Tenn. 2003). In Green, the parties disputed whether ―the thirty-
day appeal period commenced on . . . the date they filed the notice of voluntary
dismissal‖ or the date the order of nonsuit was entered by the trial court. Id. at 418. The
Tennessee Supreme Court concluded that the appeal period ran not from the notice of
nonsuit filed by the plaintiff but from the date of the order confirming the nonsuit entered
by the trial court. As the Tennessee Supreme Court explained:
The language in Rickets which arguably suggests that filing a notice of
voluntary dismissal constitutes an adjudication for purposes of commencing
the Rule 4(a) thirty-day appeal period is non-binding dicta. Rickets stands
for the proposition that, except in very limited circumstances, a party can
take a voluntary nonsuit without permission from the trial court. If filing a
notice of voluntary nonsuit was all that was required to conclude an action,
the Court of Appeals could then receive the appeal without the trial court
ever entering an order or assessing costs. Such a holding would be contrary
to common sense and our own precedent. As the Court of Appeals correctly
noted in Evans [v. Perkey, 647 S.W.2d 636 (Tenn. Ct. App. 1982)], a
―[c]ourt speaks only through its written judgments, duly entered upon its
minutes.‖ Evans, 647 S.W.2d at 641; . . . . Accordingly, we conclude that
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the unfavorable rulings of the trial court did not become appealable for the
appellant until the trial court entered its order . . . confirming that all claims
between the parties had been adjudicated.
Green, 101 S.W.3d at 419–20 (noting also that Tenn. R. Civ. P. 58 requires the judge‘s
signature on all final judgments). Thus, while the plaintiff had the unqualified right to
take a nonsuit, the voluntary dismissal was not actually accomplished until the trial
court‘s signed order confirming the nonsuit was entered. Mr. Goetz‘s argument that the
dismissal occurred ―instantaneously‖ with the notice of nonsuit is therefore unavailing.
We also cannot agree that Rickets stands for the proposition that the filing of a
notice of nonsuit deprives the trial court of jurisdiction to enter any additional orders in
the case other than an order confirming the voluntary dismissal. First, we note that the
Rickets Court was simply not faced with the question presented in this appeal: the extent
of the trial court‘s jurisdiction after a notice of nonsuit is filed. Rather, the Rickets Court
was only called upon to answer the question of whether a trial court could deny the
plaintiff of the ability to nonsuit their case where the nonsuit was expressly authorized by
Rule 41.01. See Rickets, 533 S.W.2d at 294. Accordingly, while instructive on the proper
interpretation of Rule 41.01, Rickets is not dispositive of the question squarely before this
Court. Indeed, from our research, it appears that the question of the trial court‘s
jurisdiction to extend a Rule 26.03 protective order after the filing of a notice of nonsuit
has never been addressed by Tennessee courts.5 As such, we look to other cases involving
the trial court‘s jurisdiction after a notice of nonsuit is filed to inform our analysis of this
issue.
Although not directly on point, the most closely analogous Tennessee case to the
situation presented here is Salsman v. Texcor Indus., Inc., No. W2001-00730-COA-R9-
CV, 2002 WL 1838135 (Tenn. Ct. App. July 29, 2002). In Salsman, the defendants filed
a motion for leave to amend their answer to assert a counter-claim against the plaintiffs.
Before the trial court ruled on defendants‘ motion to amend, however, the plaintiffs filed
a notice of nonsuit. Id. at *1. The trial court thereafter entered an order of voluntary
dismissal, which stated that ―no counterclaim had been pled.‖ Id. The trial court later
5
Our research has revealed two suggestions that protective orders may be extended
beyond the termination of an action. See In re NHC-Nashville Fire Litig., 293 S.W.3d 547, 552
(Tenn. Ct. App. 2008) (involving a protective order entered in a consolidated action and noting
that after most of the cases were settled, ―the trial court entered an order temporarily sealing the
judicial record related to the settled cases‖); In re: Automotive Refinishing Paint Antitrust
Litig., 2002 WL 34180319 (Davidson Cnty. Cir. Ct. Aug. 12, 2002) (entering a protective order
that ―survive the termination of this litigation‖ and noting that the trial court ―shall retain
continuing jurisdiction to enforce its terms‖). Neither case, however, specifically addresses the
trial court‘s subject matter jurisdiction to enter a protective order after the conclusion of the
litigation, nor the specific question presented in this appeal regarding the trial court‘s jurisdiction
after a notice of voluntary dismissal has been filed.
- 17 -
reversed course, ―vacat[ing] its earlier order of dismissal and grant[ing] the defendants‘
motion to amend to assert the counterclaim.‖ An interlocutory appeal followed.
On appeal, the plaintiffs raised a similar argument to the one set forth by Mr.
Goetz—―that the entire lawsuit, including the proposed counterclaim, was terminated
automatically upon their filing of a notice of voluntary dismissal and, therefore, the trial
court lacked jurisdiction to grant the defendants‘ motion to amend to assert the
counterclaim.‖ Id. at *4. The Court of Appeals disagreed. Citing a Tennessee Supreme
Court case in which the court held that a counterclaim was ―deemed ‗pleaded‘ within the
meaning of the Rule if a motion for leave to amend to add the counterclaim has been filed
but not yet granted,‖ see Frazier v. East Tennessee Baptist Hospital, Inc., 55 S.W.3d
925, 930 (Tenn. 2001), the Court of Appeals held that the trial court retained jurisdiction
to grant the defendants‘ motion to amend, which motion was pending at the time the
plaintiffs filed their notice of voluntary dismissal. Salsman, 2002 WL 1838135, at *4.
The Court noted, however, that ―[t]he [trial] court has no jurisdiction over a counterclaim
filed after the suit is voluntarily dismissed[.]‖ Id. (emphasis added) (quoting 24 Am. Jur.
2d Dismissal § 86 (1998)).
The situation in this case is arguably similar. Here, the trial court entered a
protective order under Rule 26.03 on February 18, 2011. Therein, the trial court
specifically ruled that the protective order would continue until a further order was
entered, which ―may‖ take place at the conclusion of the litigation. The trial court
reiterated that the protective order would remain in effect until both the conclusion of the
case and the entry of an order lifting the protection. Accordingly, by its very terms, the
protective order would not be terminated simply by the dismissal of the action; an order
from the trial court specifically lifting the protections contained therein was necessary.
Much like the motion to amend in Salsman, the protective order in this case was
therefore in place prior to Appellees‘ notice of non-suit. As such, Salsman suggests that
the trial court would have continuing jurisdiction over the protective order.
Federal cases interpreting a substantially similar protective order rule also indicate
that trial courts have continuing jurisdiction to extend protective orders beyond dismissal
of the underlying action. The Tennessee Supreme Court has repeatedly held that while
not controlling, federal judicial decisions ―‗interpreting rules similar to our own are
persuasive authority for purposes of construing the Tennessee rule[.]‘‖ Webb v. Nashville
Area Habitat for Humanity, Inc., 346 S.W.3d 422, 430 (Tenn. 2011) (quoting Harris v.
Chern, 33 S.W.3d 741, 745 n.2 (Tenn. 2000)). The comments to Rule 26.03 note that the
rule was adopted ―to conform substantially but not identically to Rules 26 through 37,
inclusive, of the Federal Rules of Civil Procedure.‖ The comments caution, however, that
―[e]ach rule should be compared carefully with its Federal counterpart to determine the
differences if any.‖ From our review, Rule 26.03 and Rule 26(c) of the Federal Rules of
Civil Procedure are indeed substantially similar regarding the ability of the trial court to
- 18 -
enter a protective order governing discovery.6 Accordingly, given the lack of Tennessee
authority on this issue, federal decisions are persuasive in this Court.
In federal jurisdictions, it appears a matter of no dispute that the trial courts are
entitled to extend orders of protection beyond the dismissal of the underlying litigation.
As explained by the United States District Court for the First Circuit: ―[C]ourts and
commentators seem unanimous in finding such an inherent power to modify discovery-
related protective orders, even after judgment, when circumstances justify.‖ Pub.
Citizen v. Liggett Grp., Inc., 858 F.2d 775, 782 (1st Cir. 1988) (emphasis added). For
example, Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982), involved ―the tragic events of
May 4, 1970 on the campus of Kent State University.‖ Id. at 213. At the conclusion of
the litigation, the district court vacated the broad protective order that had been in place
throughout the proceedings, ordering instead that many of the previously protected
documents may be disseminated. The district court, however, required redactions of some
documents and ordered that some documents exchanged during discovery be returned
from whence they came. Id. at 216. The Ohio Attorney General argued that the broad
protection should remain in place. The United States Court of Appeals for the Sixth
Circuit affirmed the trial court‘s decision, however, noting that the trial court ―carefully‖
followed Supreme Court precedent in considering whether good cause existed to extend
6
Specifically, Rule 26(c) provides, in relevant part:
(1) In General. A party or any person from whom discovery is sought may move for a
protective order in the court where the action is pending—or as an alternative on matters
relating to a deposition, in the court for the district where the deposition will be taken.
The motion must include a certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to resolve the dispute without
court action. The court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense, including one
or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place or the allocation of expenses, for
the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party
seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or
discovery to certain matters;
(E) designating the persons who may be present while the discovery is
conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or
commercial information not be revealed or be revealed only in a specified way;
and
(H) requiring that the parties simultaneously file specified documents or
information in sealed envelopes, to be opened as the court directs.
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the protective order for each class of documents at issue. Id. at 219 (citing Nixon v.
Warner Communications, Inc., 435 U.S. 589, 597–99, 98 S. Ct. 1306, 1311–12, 55 L.
Ed. 2d 570 (1978)). Noting that the protective order at issue was entered after ―the Kent
State cases had finally come to a total settlement,‖ the Sixth Circuit concluded that the
trial court ―drafted [its orders] with careful recognition of the competing interests, and he
scrupulously followed the applicable law.‖ Id. Importantly, nothing in the Opinion in any
way suggests that the trial court lost jurisdiction to enter a protective order because the
litigation was concluded.
Indeed, other cases show that federal trial courts often extend protective orders
beyond the conclusion of litigation. See, e.g., Foltz v. State Farm Mut. Auto. Ins. Co.,
331 F.3d 1122, 1128 (9th Cir. 2003) (involving a record sealed after conclusion of the
litigation at request of parties); Empire Blue Cross & Blue Shield v. Janet Greeson’s A
Place For Us, Inc., 62 F.3d 1217, 1219 (9th Cir. 1995) (holding that the trial court
retained jurisdiction to modify a protective order that was ongoing despite the settlement
of the underlying litigation); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d
157, 167 (3d Cir. 1993) (involving an intervening party‘s request to modify a protective
order that remained in effect after settlement of the underlying lawsuit); Poliquin v.
Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993) (―Where the district court does
protect material during discovery, it is common to provide, as the magistrate judge did
here, for post-trial protection including the return or destruction of protected material. In
most cases, the lubricating effects of the protective order on pre-trial discovery would be
lost if the order expired at the end of the case or were subject to ready alteration.‖); In re
Commercial Fin. Servs., Inc., 247 B.R. 828, 844 (Bankr. N.D. Okla. 2000) (―A
protective order that concerns the preservation of privileges and confidentiality endures
beyond the closing of a case[.]‖); State of Fla. ex rel. Butterworth v. Jones Chemicals,
Inc. (Florida), No. 90-875-CIV-J-10, 1993 WL 388645, at *2 (M.D. Fla. Mar. 4, 1993)
(holding that a protective order, which expressly ―survive[d] the termination of this
action,‖ did not ―exceed the jurisdiction of the [c]ourt‖); see also Rosado v. Bridgeport
Roman Catholic Diocesan Corp., 276 Conn. 168, 214, 884 A.2d 981, 1008 (Conn. 2005)
(holding that protective order may be modified after the conclusion of the litigation and
citing Ballard, supra, as support); Reis v. Iowa Dist. Court for Polk Cnty., 787 N.W.2d
61, 66 (Iowa 2010) (holding that the trial court retained jurisdiction to enforce its
previously entered protective order despite dismissal of the underlying action); State ex
rel. Conkle v. Sadler, 2003-Ohio-4124, ¶ 11, 99 Ohio St. 3d 402, 404, 792 N.E.2d 1116,
1119 (―[A] protective order that on its face survives the underlying litigation continues to
be effective even after the underlying case has been dismissed.‖). As the United States
Second Circuit Court of Appeals succinctly stated: ―The court‘s supervisory power does
not disappear because jurisdiction over the relevant controversy has been lost. The
records and files are not in limbo. So long as they remain under the aegis of the court,
they are superintended by the judges who have dominion over the court.‖ Gambale v.
Deutsche Bank AG, 377 F.3d 133, 141 (2d Cir. 2004). Accordingly, ―[a]s long as a
protective order remains in effect, the court that entered the order retains the power to
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modify it, even if the underlying suit has been dismissed.‖ United Nuclear Corp. v.
Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990), cert. denied, 498 U.S. 1073,
111 S. Ct. 799, 112 L. Ed. 2d 860 (1991).
None of the above cases specifically condition the trial court‘s jurisdiction to
extend a protective order beyond the conclusion of the case upon the method of
conclusion, be it after trial, through settlement, or through voluntary dismissal. Indeed,
the general rule appears to be true even where the underling action is concluded by
voluntary dismissal. For example, in Wolters Kluwer Fin. Servs. Inc. v. Scivantage, No.
07 CV 2352 (HB), 2007 WL 1498114 (S.D.N.Y. May 23, 2007), the plaintiff voluntarily
dismissed the action immediately following the defendants‘ production of tens of
thousands of documents as required by the parties‘ production deadline. Id. at *2. Prior to
the voluntary dismissal, the district court had issued a protective order designating some
documents as ―CONFIDENTIAL INFORMATION‖ or ―ATTORNEYS‘ EYES ONLY
INFORMATION‖ and prohibiting the use of the information contained therein outside of
the underlying litigation. Id. at *1–2. The plaintiff later filed a motion for permission to
use ―transcripts of ‗attorneys‘ eyes only‘ depositions that [p]laintiff had taken of the
individual [d]efendants‖ in a separate action. Id. at *1. The district court denied the
motion, ruling instead that its protective order remained in place notwithstanding the
plaintiffs‘ action in voluntarily dismissing the underlying litigation. Id.
In reaching this result, the district court first examined the issue of its jurisdiction
to extend the protective order given the plaintiff‘s decision to voluntarily dismiss the
underlying litigation: ―As a threshold matter, this Court retains jurisdiction, pursuant to
the explicit retention of jurisdiction in the Protective Order, ‗even after termination of this
lawsuit,‘ to ‗enforce this order and to make such amendments and modifications to this
Order as may be appropriate.‘‖ Id. at *6 (internal citation omitted). The district court
further concluded that even without such an express retention provision, the result would
likely be the same: ―Even if the Protective Order here did not explicitly provide for
retention of jurisdiction, this Court would in all likelihood retain the power to supervise
disclosure of documents under the Protective Order and modify its terms, if appropriate.‖
Id. (citing Gambale, 377 F.3d at 141). The district court ultimately ruled that the
protective order should remain in place, especially given the volume of documents
produced by the defendants compared to the relatively meager discovery provided by the
plaintiff. Wolters Kluwer, 2007 WL 1498114, at *9. Thus, the decision in Wolters
Kluwer highlights the fact that a court‘s jurisdiction to continue a previously entered
protective order is not terminated by the voluntary dismissal of the action by the plaintiff.
See also Grundberg v. Upjohn Co., 140 F.R.D. 459, 462 (D. Utah 1991) (noting that the
trial court‘s protective order remained ―in full force and effect‖ notwithstanding the
―voluntary and unconditional‖ dismissal of the action).
- 21 -
Because Rule 26.03 is substantially similar to its federal counterpart, we agree
with the ―seem[ing] unanim[ity]‖ of the federal courts that protective orders may be
extended even after dismissal of the underlying actions. Liggett, 858 F.2d at 782. In fact,
nothing in our research or pointed out by Mr. Goetz indicates that the trial court‘s
jurisdiction in this regard is in any way curtailed simply because the plaintiff chose to
voluntarily dismiss the lawsuit. As illustrated by the Wolters Kluwer case, a voluntary
dismissal may take place after extensive discovery has been exchanged; while the
voluntary dismissal concludes the case, it is impossible to ―unring the proverbial bell‖
that potentially damaging and confidential documents were exchanged. Dispatch
Printing Co. v. Recovery Ltd. P’ship, 2006-Ohio-1347, ¶ 13, 166 Ohio App. 3d 118, 123,
849 N.E.2d 297, 301. Indeed, such a consideration is even more likely to be relevant with
regard to a nonsuit taken under Rule 41.01(1) because ―the availability of nonsuit as of
right [under Rule 41.01(1)] terminates at a considerably later procedural stage than under
Federal Rule 41(a)(1).‖ Lacy v. Cox, 152 S.W.3d 480, 484–85 (Tenn. 2004).
Accordingly, the policy underlying protective orders is furthered by allowing such
protection to extend beyond the conclusion of the case, regardless of the form that
dismissal takes. See Ballard, 924 S.W.2d at 658 (noting that Rule 26.03 is ―intended to
offer litigants a measure of privacy‖).
Furthermore, while this is an issue of first impression, our holding fully comports
with Tennessee law. As previously discussed, the Tennessee Supreme Court has
specifically held that trial courts retain power to modify protective orders. See Ballard,
924 S.W.2d at 658. In addition, the Tennessee Supreme Court has held that a nonsuit
does not take effect until the entry of the order of nonsuit, rather than at the time the
notice of voluntary dismissal is filed. See Green, 101 S.W.3d at 419–20. Accordingly, the
notice of nonsuit does not immediately divest the trial court of jurisdiction to enter further
orders in the case, including orders of protection. Moreover, to allow a trial court to
extend a previously entered protective order once the litigation is concluded harmonizes
with this Court‘s holding that the trial court retains jurisdiction to grant a motion that was
pending prior to the filing of plaintiff‘s notice of voluntary dismissal. See Salsman, 2002
WL 1838135, at *4. Because a proper case was pending at the time both the initial
protective order was issued and at the time the trial court entered its ruling extending the
order beyond the dismissal of this lawsuit, this situation is simply not analogous to
previous cases wherein this Court held that the trial court lacked subject matter
jurisdiction to enter a protective order. See Adams, 2002 WL 192575, at *6 (holding that
the trial court lacked subject matter jurisdiction because no case had ever been pending
before the court from which jurisdiction could attach). Where, as here, the trial court has
previously entered a protective order that is not to terminate until further order of the
court, the trial court retains jurisdiction to continue such order despite the fact that the
plaintiff nonsuits the underlying litigation. To hold otherwise would be to limit not only
the protection offered by Rule 26.03 but also the court‘s ―inherent supervisory authority
over its own records and files.‖ In re NHC-Nashville, 293 S.W.3d at 561. In the absence
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of any law suggesting otherwise, we conclude that such limitation on the trial court‘s
inherent power is not mandated by the plaintiff‘s choice to nonsuit his or her case.
Here, the trial court entered a protective order on February 18, 2011, providing
specific protections regarding the dissemination of information exchanged during the
discovery phase of this case. Based on the Tennessee Supreme Court‘s holding in Ballard
and the foregoing discussion, the trial court retained jurisdiction to extend and modify the
protective order under appropriate circumstances notwithstanding Appellees‘ choice to
voluntarily dismiss their cause of action. As such, the trial court‘s March 9, 2012 order
extending the initial protection order and the subsequent August 27, 2012 order amending
the March 9, 2012 order were not void on their face.
Mr. Goetz nevertheless argues that the trial court erred in its August 27, 2012
order because it ―applied the standard for a Rule 26.03 protective order but granted the
relief of a permanent injunction[.]‖ According to Mr. Goetz, the trial court‘s order was
overly broad because it applied not only to information gleaned through discovery but
also to ―facts known to [Mr.] Goetz long before discovery began.‖ Mr. Goetz further
contends that the trial court‘s order improperly restricts his First Amendment free speech
rights. Regardless of whether Mr. Goetz is correct in his characterization of the scope of
the trial court‘s order, we simply cannot address this issue in this appeal. As previously
discussed, the order that Mr. Goetz is seeking to appeal was entered on August 27, 2012.
The underlying matter was concluded by this order and Mr. Goetz was therefore required
to file a notice of appeal within thirty days of this order if he wished to challenge it. See
American Steinwinter, 964 S.W.2d at 571. Mr. Goetz, however, chose not to file a timely
appeal of this order but instead waited over two years to raise this argument.
Given Mr. Goetz‘s substantial delay in raising this issue, we simply have no
jurisdiction to consider it. As previously discussed, unless an interlocutory or
extraordinary appeal is granted by this Court, our jurisdiction is conditioned on a timely
filed notice of appeal, which may not be extended or waived. Id. Unlike Mr. Goetz‘s
argument that the trial court lacked jurisdiction to enter the protective order, Mr. Goetz‘s
argument concerning the scope of the protective order does not concern the trial court‘s
subject matter jurisdiction. In other words, even if Mr. Goetz is correct that the trial court
improperly included information that should not have been subject to the protective order
or applied an incorrect standard in extending the protective order, these considerations
would not render the protective order void. As the Tennessee Supreme Court explained:
―[A] void judgment is one so affected by a fundamental infirmity that the
infirmity may be raised even after the judgment becomes final. The list of
such infirmities is exceedingly short; otherwise, [the] exception to finality
would swallow the rule.‖ United Student Aid Funds, Inc. v. Espinosa, 559
U.S. 260, 270, 130 S. Ct. 1367, 176 L. Ed. 2d 158 (2010) (internal citation
omitted). A judgment rendered by a court lacking either personal or subject
matter jurisdiction is void. Ins. Corp. of Ireland, 456 U.S. at 694, 102 S.Ct.
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2099; Hood v. Jenkins, 432 S.W.3d 814, 825 (Tenn.2013); Gentry v.
Gentry, 924 S.W.2d 678, 680 (Tenn.1996). Nevertheless, a judgment of a
court of general jurisdiction is presumed to be valid and will be held void
only when ―its invalidity is disclosed by the face of that judgment, or in the
record of the case in which that judgment was rendered.‖ Giles v. State ex
rel. Giles, 191 Tenn. 538, 235 S.W.2d 24, 28 (1950)[.]
Turner, 473 S.W.3d at 270 (footnote omitted). Consequently, ―a judgment is not subject
to collateral attack for mere errors or irregularities committed by the court in the exercise
of its jurisdiction. Errors other than lack of jurisdiction render the judgment merely
voidable, and a voidable judgment can only be challenged on direct appeal.‖ Hood v.
Jenkins, 432 S.W.3d 814, 825 (Tenn. 2013) (quoting Cumberland Bank v. Smith, 43
S.W.3d 908, 910 (Tenn. Ct. App. 2000)). Here, we have previously determined that the
trial court retained jurisdiction to extend its protective order beyond the voluntary
dismissal of the underlying lawsuit. Mr. Goetz has alleged no other jurisdictional
infirmities that would render the trial court‘s August 27, 2012 order void. Where Mr.
Goetz only seeks to correct ―mere errors or irregularities committed by the court in the
exercise of its jurisdiction,‖ he was required to directly appeal the trial court‘s order to
address those alleged errors. Hood, 432 S.W.3d at 825 (quoting Cumberland Bank, 43
S.W.3d at 910). Because Mr. Goetz did not directly appeal but instead raised this
argument over two years after the August 27, 2012 order became final, we simply have
no jurisdiction to correct the alleged errors.
III.
Mr. Goetz finally argues that, if the trial court had continuing jurisdiction to
extend the protective order notwithstanding Appellees‘ nonsuit, the trial court retained
jurisdiction to consider a petition to modify the protective order and erred in refusing to
entertain evidence on the subject. We agree. As we have noted, the Tennessee Supreme
Court has held that the trial court ―has power‖ to modify an existing protective order. See
Ballard, 924 S.W.2d at 658. If the trial court‘s jurisdiction to extend an existing
protective order is not terminated by the dismissal of the underlying cause of action, it
follows that the trial court‘s well-settled power to modify a protective order extends for
the life of the protective order. Appellees apparently concede that the trial court had the
power to modify its protective order. Appellees assert, however, that the trial court did
not err in refusing Mr. Goetz‘ request because: (1) his motion did not actually seek
modification but clarification on the scope of the existing order; and (2) the trial court
properly exercised its discretion in ―weigh[ing] [] the competing needs and interests of
the parties‖ to deny modification. Id. at 661.
The Tennessee Supreme Court in Ballard v. Herzkle outlined the appropriate
standard trial court‘s must consider when a party seeks an initial protective order and
when a party thereafter seeks to modify a protective order already in place. See Ballard,
924 S.W.2d at 658–59. As to an initial order, the trial court must consider ―whether good
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cause has been established for a protective order‖ by ―balanc[ing] one party‘s need for
information against the injury that would allegedly result if disclosure is compelled.‖ Id.
at 658. The Court outlined factors that both weigh in favor and against a finding of good
cause, including the identity of the parties, whether the information at issue is a matter of
public or private concern, and whether disclosure would result in serious harm or
embarrassment to one party. Id. at 658–59. Regardless of the trial court‘s ultimate
decision to grant or deny the protective order, ―the ultimate decision . . . is entrusted to
the sound discretion of the trial court and it will not be reversed on appeal, absent a
showing of abuse of discretion.‖ Id. at 659.
The standard for modifying a protective order adopted by the Tennessee Supreme
Court in Ballard is ―a derivative of the standard governing the ‗good cause‘ analysis‖
outlined above. Id. As such, ―once a party moves to modify a protective order, a trial
court must balance the factors initially considered when determining good cause, and in
addition, consider the reliance of the original parties to the order, to determine whether
good cause still exists for the order.‖ Id. at 660. As the Ballard Court explained:
[I]f access to protected materials can be granted without causing harm to
legitimate privacy interests, access should be granted. Unless the motion
seeks to modify a blanket protective order, the movant has the burden of
establishing that the need for access to the materials outweighs the privacy
concerns. . . . When modification of a blanket protective order is sought, the
party seeking to maintain confidentiality must designate the documents
alleged to be confidential and then establish that good cause exists with
respect to those documents.
Id. (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3rd Cir. 1994)).
In his May 22, 2015 motion to modify the protective order, Mr. Goetz asserted
that circumstances had changes such that the protective order was no longer necessary.
Specifically, he asserted that Appellees had moved out-of-state reducing the likelihood
that their children would be harmed by dissemination of the protected documents and that
the protective order had prevented Mr. Goetz from clearing his name after Appellees‘
lawsuit was voluntarily dismissed. Although Mr. Goetz specifically requested a hearing
to present evidence, the trial court denied him the opportunity. Instead, the trial court‘s
order denying Mr. Goetz‘s motion for modification addresses none of his allegations
regarding changed circumstances or the good cause standard articulated in Ballard.
Rather, the trial court simply dismissed Mr. Goetz‘s petition on the basis of res judicata.
Respectfully, the trial court erred in this respect. It is well-settled that where a trial
court‘s orders are subject to modification and a party establishes a change in
circumstances sufficient to support modification, the doctrine of res judicata will not
serve as a bar to modification. See, e.g., In re E.J.M., 259 S.W.3d 124, 136 (Tenn. Ct.
App. 2007) (―Custody orders are res judicata and cannot be modified unless there has
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been a material change in circumstances that makes a change of custody in the child‘s
best interest.‖). Because modification of protective orders has been expressly authorized
by our supreme court, res judicata will not serve as a bar to modification so long as the
movant can show the quantum of proof required to support modification. See Ballard,
924 S.W.2d at 658. The trial court therefore erred in refusing to even consider Mr.
Goetz‘s proof to determine whether a modification was warranted under the standard
articulated in Ballard. Consequently, we vacate the trial court‘s order denying Mr.
Goetz‘s requested modification and remand for further proceedings to determine whether
modification is warranted pursuant to the Tennessee Supreme Court‘s directives in
Ballard. We note that this Court has consistently held that Rule 52.01 of the Tennessee
Rules of Civil Procedure requiring trial courts to make findings of fact and conclusions of
law in bench trials is applicable in modification of child custody and visitation
proceedings. See, e.g., Sisco v. Howard, No. M2015-01928-COA-R3-CV, 2016 WL
7190899, at *2 (Tenn. Ct. App. Dec. 12, 2016) (involving a modification of the parties‘
parenting plan) (citing Tenn. R. Civ. P. 52.01 (―In 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.‖)); In re Teven A., No. M2013-
02519-COA-R3-JV, 2014 WL 7419292, at *1 (Tenn. Ct. App. Dec. 29, 2014) (same);
Aragon v. Aragon, No. M2013-01962-COA-R3-CV, 2014 WL 1607350, at *1 (Tenn. Ct.
App. Apr. 21, 2014) (same). Accordingly, we likewise direct the trial court to make
appropriate findings of fact and conclusions of law to support its ruling on remand.
CONCLUSION
The judgment of the Circuit Court of Shelby County is affirmed in part, vacated in
part, and remanded for further proceedings, such as an evidentiary hearing, as may be
necessary and is consistent with this Opinion. Costs of this appeal are taxed one-half to
Appellant William Goetz, and his surety, and one-half to Appellees Donel Autin and
Dana Autin, for all of which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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