Dupuis v. Hand

• Decision Date: 22 April 1991
• Docket Number: No. 01-S-01-9007CV-00065,01-S-01-9007CV-00065
• Citation: 814 S.W.2d 340
• Parties: Walter A. DUPUIS, Plaintiff/Appellee, v. Charles W. HAND, Defendant/Appellant. 814 S.W.2d 340
• Court: Tennessee Supreme Court

Page 340

814 S.W.2d 340

Walter A. DUPUIS, Plaintiff/Appellee, v. Charles W. HAND, Defendant/Appellant.

No. 01-S-01-9007CV-00065.

814 S.W.2d 340

Supreme Court of Tennessee at Nashville.

April 22, 1991.

Steve North, William J. Harbison, Nashville, for defendant, appellant.

Mart G. Fendley, Clarksville, for plaintiff, appellee.

OPINION

ANDERSON, Justice.

This alienation of affections case raises two issues for resolution. The first is whether a trial judge designated by the Chief Justice is the only trial judge with the power to render a judgment. The second is whether the common-law tort of alienation of affections has been or should be abolished in this case.

We have determined that the trial judge in this case had the authority under Tennessee statutes to hear and determine this case, even though he was not the designee of the Chief Justice. Accordingly, we reverse the decision of the Court of Appeals which dismissed the appeal on the procedural ground there was "no recognizable judgment" for review. Because of the policy nature of the merits of this action, and in the interest of judicial economy, we elect not to remand to the Court of Appeals, but rather to consider the substantive issue. We have decided to abolish the common-law action for alienation of affections. Consequently, we affirm the Chancellor's order of summary judgment in favor of the defendant, but on different grounds.

PROCEDURAL HISTORY

The plaintiff, Walter A. Dupuis, filed this action for alienation of affections against the defendant, Charles W. Hand, in the Circuit Court of Montgomery County, Tennessee, on August 4, 1986. By the time this case reached the Court of Appeals, no less than four trial judges had participated in the litigation.

Circuit Judge James E. Walton considered and ruled upon several preliminary matters before recusing himself in October of 1986. Judge Thomas Boyers, IV, a Circuit Judge from an adjoining circuit, thereafter sat by interchange, with the consent of both parties, until his death in the spring of 1989.

Judge Thomas C. Goodall, III, was duly appointed by the Governor as the successor to Judge Boyers after the latter's death. Once again, both parties consented and acquiesced to the authority of Judge Goodall to preside over this case. The defendant filed a motion for summary judgment, which Judge Goodall heard and granted by order entered July 27, 1989. Judge Goodall held that the defendant was entitled to summary judgment as a matter of law, because the Tennessee General Assembly had abolished the tort of alienation of affections on May 25, 1989, effective July 1, 1989.

Unbeknownst to the parties or their counsel, on May 22, 1989, Judge Walton requested that another judge be designated due to the untimely death of Judge Boyers. On June 14, 1989, Chief Justice Frank F. Drowota, III, designated Judge Joe C. Loser, Jr., to sit in place of Judge Walton. This designation was filed in the office of the Circuit Court Clerk of Montgomery County. On August 11, 1989, unaware that a summary judgment motion had already been sustained by Judge Goodall, Judge Loser signed an order directing that a pretrial conference be held. Meanwhile, the plaintiff filed a notice of appeal of the summary judgment order of Judge Goodall to the Court of Appeals.

The Court of Appeals refused to consider the merits of the plaintiff's appeal; acting sua sponte, it held that the court "cannot recognize or review a judgment" rendered by anyone but the judge designated by the Chief Justice. Accordingly, the Court of Appeals dismissed the appeal, and remanded the case to the trial court for disposition by Judge Loser. We granted the plaintiff's application for permission to appeal to determine the important questions of procedure and policy raised by the appeal.

VALIDITY OF JUDGMENT

DESIGNATION AND INTERCHANGE OF TRIAL JUDGES

We begin our analysis of the authority of the trial judge to render judgment in this case by an examination of the legislative statutes which grant judges the authority to act.

Interchange of trial judges is authorized by Tennessee Code Annotated, Sec. 17-2-201, which provides that circuit judges may interchange with each other or with judges of special courts for one or more courts, ... when causes exist making an interchange necessary, or for mutual convenience; and, in the absence of the judge of any circuit, his death, or inability to hold court, any circuit judge may hold court in his stead.

Such interchange may be for the entire circuit, a single term, a part thereof, or for a special case. Elms v. State, 29 Tenn. 128 (1849). There is no requirement that application be made to the Chief Justice for assignment of a judge to a particular case. State ex rel. Stall v. City of Knoxville, 211 Tenn. 271, 364 S.W.2d 898 (1962), cert. denied, 372 U.S. 914, 83 S.Ct. 728, 9 L.Ed.2d 721 (1963). The judge interchanging has the same power and jurisdiction as the judge he or she replaced. See Tenn.Code Ann. Sec. 17-2-206.

Designation of special trial judges is authorized by Tennessee Code Annotated, Secs. 17-2-109 and -110, which provide for appointment of special judges by the Chief Justice to relieve delay in the disposition of litigation, or upon the certification of a trial judge of his or her inability to try a case. Tennessee Code Ann. Sec. 17-2-109(c) provides that "[n]othing herein shall be construed to interfere with the appointment of special chancellors or judges as provided elsewhere by statute." (Emphasis added.)

Tennessee Code Annotated, Sec. 17-2-101, provides that even where a trial judge is otherwise incompetent, that trial judge may preside by consent of all parties. An objection to a judge's competence cannot be made for the first time on appeal; the objection should come before trial is had on the merits. See Rowe v. Greer, 32 Tenn. 172 (1852); Hilton v. Miller & Co., 73 Tenn. 395 (1880); Obion County ex rel. Houser Creek Drainage District v. Coulter, 153 Tenn. 469, 284 S.W. 372 (1926). Moreover, Tenn.Code Ann. Sec. 16-2-502 provides that "any judge or chancellor may exercise by interchange, appointment, or designation the jurisdiction of any trial court other than that to which such judge or chancellor was elected or appointed."

We conclude that both Judge Goodall and Judge Loser had concurrent authority, by interchange and designation respectively, to preside over this case. Judge Goodall's earlier exercise of that authority, without objection by either party, was valid under the interchange statute. Therefore, we hold that the defendant's appearance in Judge Goodall's court without objection was a waiver of the defendant's right to challenge Judge Goodall's authority. For these reasons, that portion of the Court of Appeals' order dismissing the appeal and remanding is reversed.

Typically at this point, we would remand to the Court of Appeals for consideration of the plaintiff's appeal on the merits. In this case, however, the Eastern Section of the Court of Appeals has already concluded that the tort of alienation of affections should be abolished, but that as an intermediate appellate court it was without the power to do so. See Lentz v. Baker, 792 S.W.2d 71 (Tenn.App.1989). The Court of Appeals urged the Legislature and this Court to abolish the torts. ¹ Under these peculiar circumstances and for reasons of judicial economy, we find that a remand to the Court of Appeals would be inappropriate. Therefore, we exercise our discretion pursuant to Tenn.R.App.P. 13(a), to consider the viability of alienation of affections actions in Tennessee.

ABOLITION OF ALIENATION OF AFFECTIONS

The common-law tort of alienation of affections was abolished by the General Assembly of Tennessee as of July 1, 1989:

SECTION 1. The common law tort action of alienation of affections is hereby abolished.

SECTION 2. Tennessee Code Annotated, Section 28-3-105, is amended by deleting subdivision (4) in its entirety.

SECTION 3. The bill shall take effect on July 1, 1989, the public welfare requiring it.

Chapter 517, Public Acts of Tennessee 1989.

The defendant first argues Judge Goodall correctly held that this statute abolished actions for alienation of affections retrospectively and accordingly, even though plaintiff's action had been filed and was pending prior to the date of the passage of the act, it was abolished. In Hanover v. Ruch, 809 S.W.2d 893 (Tenn.1991), however, we held that Article I, Section 20 of the Tennessee Constitution prohibits retroactive application of statutes affecting vested common-law rights to previously-filed cases. As we observed in Hanover,

First, the General Assembly is without authority to enact a retrospective law, affecting vested substantive rights. Tenn. Const. art. I, Sec. 20. ² Where a statute alters the common law and results in deprivation of a valuable common-law right, such statute cannot constitutionally be applied retroactively. See Massey v. Sullivan County, 225 Tenn. 132, 464 S.W.2d 548 (1971). ... ³

Determining the status of the common law in effect on the date of filing is within the exclusive jurisdiction of this Court. Thus, the statute itself contemplates that the Supreme Court, not the Legislature, has the power to abolish a common-law tort retrospectively.

Accordingly, because we have previously held the Legislature is without authority to enact a retrospective statute affecting vested substantive rights, the statute abolishing the tort of alienation of affections does not affect this case.

Consequently, we now consider whether this Court should abolish the tort of alienation of affections. In Lentz v. Baker, 792 S.W.2d 71 (Tenn.App.1989), the Court of Appeals discussed the history of this common-law tort action, its origin and development, and the reasons for abolishment as follows:

The tort had its genesis in early Roman Law when the paterfamilias, or head of the household, had an action for violence committed against his wife, children or slaves on...