Facts: Mark and Bennett were casual friends and neighbors who lived in the same apartment complex. Mark became concerned by Bennett’s strange behavior and tried to avoid Bennett. Bennett refused to leave Mark alone.

Mark filed for an order of protection against Bennett, claiming that Bennett was stalking him.

Bennett was served with the petition and notice directing him to appear in court two days later.

Bennett showed up for the hearing. While he complained he did not have enough time to hire a lawyer, Bennett did not ask that the hearing be rescheduled so he could hire counsel or have more time to prepare. Instead, he said he was ready to proceed. Bennett gave an opening statement and a closing argument, testified on his own behalf, cross-examined witnesses, and entered exhibits into evidence.

The trial court found that Bennett stalked Mark and entered an order of protection requiring Bennett to have no contact with Mark.

Bennett then hired a lawyer and asked for a new trial because he did not receive the required five days’ notice of the hearing. The trial court found Bennett waived his right to object to the lack of notice when he appeared and proceeded with the hearing.

Bennett appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee law requires that notice of the hearing on a petition for an order of protection be served on the respondent at least five days before the hearing.

Tennessee law also recognizes an appearance in court and participation in the proceedings to serve as a waiver of the right to contest proper notice.

Bennett argued that he was unaware of his right to five days’ notice because did not have an attorney and, therefore, he did not waive his right because he was not aware of the right.

The Court found Bennett waived his right to challenge notice after the trial:

The trial court acknowledged that the petition was not served at least five days before the hearing. However, it found that [Bennett] had waived his right to notice because he appeared in court pro se on the scheduled hearing date and stated that he would proceed with the hearing.

As noted by the [trial] court, when the case was initially called, [Bennett] “stood up in open court and stated that he disputed the allegations in the petition and that he was ready to proceed with a contested hearing.” Later, [Bennett] “again advised the court that he disputed that an order of protection should be entered, and further advised the [trial] court that he was ready to proceed with an order of protection hearing.” The trial court observed that [Bennett] “did not request a continuance seeking additional time to prepare his case and/or obtain legal counsel.” [Bennett] further filed his pro se answer with the court.

We may not allow any litigant to announce a desire to proceed with the hearing, conduct that hearing, only to later disregard the [trial] court’s determination when the litigant is dissatisfied with the [trial] court’s ruling.

The Court affirmed the trial court’s ruling.

Jackson v. Burke (Tennessee Court of Appeals, Eastern Section, January 27, 2023).

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