Faucon v. Mgridichian
| Decision Date | 11 June 2020 |
| Docket Number | No. E2019-01343-COA-R3-CV,E2019-01343-COA-R3-CV |
| Parties | JAMIE FAUCON v. MICHAEL MGRIDICHIAN |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Knox County
This case involves a violation of an ex parte order of protection. The order required the respondent to refrain from contacting the petitioner in any way, including electronic communication. The trial court found the respondent in criminal contempt for violating the order by contacting Petitioner over "amateur radio" on three separate occasions. Respondent appealed, asserting the trial court lacked jurisdiction over the case and that he did not receive sufficient notice of the criminal contempt charges. We affirm the trial court and remand.
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.
John C. Barnes and Brandon Dallas Fersten, Knoxville, Tennessee, for the appellant, Michael Mgrdichian.1
Jamie Faucon, Knoxville, Tennessee, Pro Se.
OPINIONOn April 30, 2019, Jamie Faucon ("Petitioner") filed a Petition for an Order ofProtection against Michael J. Mgridichian ("Respondent") in the Fourth Circuit Court of Tennessee, sitting in Knox County. In the petition, Petitioner alleged Respondent stalked, threatened, and harassed Petitioner on multiple occasions from 2016 to April 2019. Petitioner claimed the threats took place over "HAMM radio" after Petitioner repeatedly asked Respondent to cease his actions. Petitioner claims Respondent's actions began after Petitioner filed a complaint with the Federal Communications Commission ("FCC") because Respondent was allegedly using "racially abusive language on the HAMM radio."
On the same day the petition was filed, the trial court issued a Temporary (Ex Parte) Order of Protection (the "ex parte order") pursuant to Tennessee Code Annotated section 36-3-605(a). The ex parte order detailed several actions that Respondent was to refrain from committing. The pertinent command for this appeal stated that Respondent would "not contact the petitioner either directly or indirectly, by phone, email, messages, mail, or any other type of communication or contact." (Emphasis added). The ex parte order included a notice for Respondent that included the following: "If you do not obey all orders on this form, you may be fined and sent to jail, for 10 days for each and every violation (criminal contempt of court)." Respondent received service of the ex parte order on May 7, 2019.
On May 13, 2019, Petitioner filed a motion for a show cause order based on an alleged violation of the ex parte order. In the motion, Petitioner alleged that on May 9, 2019, Petitioner was speaking with a third party on amateur radio when Respondent interjected into the conversation.2 The motion included a fiat, which had a "checked" box that indicated Respondent was to appear and answer for the charges of criminal contempt of court. The same paragraph stated, "Each offense of criminal contempt proved beyond a reasonable doubt is punishable by ten (10) days in jail and/or a $50 fine." The fiat also included a "Notice to Respondent" that listed the notice requirements of Tennessee Rule of Criminal Procedure Rule 42(b). The trial court granted the motion and issued an Order to Show Cause on May 13, 2019. On May 28, 2019, Respondent was served with the order, the motion, and the fiat. The court's order to show cause included a caption that stated, "Show Cause Civil Action."
Petitioner filed a second motion for a show cause order on May 16, 2019. This motion was substantively identical to Petitioner's first motion—including: a fiat that indicated Respondent was to answer for charges of criminal contempt, the potential penalty for each count of criminal contempt, and Rule 42(b) notice. This motion listed two separate charges against Respondent.3 In this motion, Petitioner alleged thatRespondent violated the ex parte order by again making contact on amateur radio on May 13 and May 15, 2019 and refusing to leave the frequency. The circuit court granted the motion. On May 23, 2019, Respondent was served with the order, the motion, and its accompanying fiat.4 This order to show cause also included a caption titled, "Show Cause Civil Action."
On May 23, 2019, with the ex parte order still in effect, the trial court held a hearing on the initial petition for an order of protection. Both parties appeared pro se. With charges for criminal contempt of court pending against Respondent, at the outset of the hearing, the court advised Respondent of his Fifth Amendment rights related to the show cause orders, including the right to appointed representation and the right against self-incrimination. The court also stated that Respondent could be incarcerated for up to ten days and fined fifty dollars for each count of which he was found guilty. Respondent requested to continue with the hearing on the order of protection, and a hearing for the show cause orders was reset for July 2, 2019.5 Petitioner could not offer sufficient proof on the underlying petition for an order of protection, so the petition was voluntarily dismissed at the May 23 hearing.
At the July 2, 2019 hearing on the show cause orders, both parties again appeared pro se.6 The court informed Respondent of the potential penalties for each violation, that he is presumed innocent until proven guilty, that he cannot be compelled to testify, and that the charges against him must be proven beyond a reasonable doubt. Proof was heard on the show cause orders from May 13 and May 16, 2019. Subsequently, the trial court found Respondent committed three violations of the ex parte order and sentenced him to 30 days of incarceration. Bond was set at $7,500, pending an appeal. The trial court entered a written order on its ruling on July 2, 2019. Respondent timely appealed.
Respondent raises three issues on appeal, which we have reworded.
For the reasons stated herein, we affirm the trial court and remand.
The Supreme Court has previously detailed the standard of review in criminal contempt cases.
A person charged with criminal contempt is presumed innocent, and guilt must be proven beyond a reasonable doubt. Once convicted, however, the contemnor loses the presumption of innocence and bears the burden of overcoming the presumption of guilt on appeal. Thus, appellate courts do not review the evidence in a light favorable to the accused. A conviction will be reversed for insufficient evidence only when the facts in the record, and any inferences that may be drawn therefrom, are insufficient as a matter of law for a rational trier of fact to find the accused guilty of the crime beyond a reasonable doubt.
State v. Beeler, 387 S.W.3d 511, 519 (Tenn. 2012) (citations omitted). A trial court's conclusions on questions of law are reviewed de novo, without any presumption of correctness. Lovlace v. Copley, 418 S.W.3d 1, 16 (Tenn. 2013).
On appeal and throughout the entirety of this case, Petitioner has acted pro se.
Parties who decide to represent themselves are entitled to fair and equal treatment by the courts. The courts should take into account that many pro se litigants have no legal training and little familiarity with the judicial system. However, the courts must also be mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant's adversary. Thus, the courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe.
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted).
Respondent attempted to have this case dismissed at the initial hearing on May 23, 2019, by arguing the trial court did not have jurisdiction. He argued that state courts do not have jurisdiction over any communication involving amateur radio. The trial court stated it did have jurisdiction based on an alleged violation of the ex parte order, but the court also stated, at the next hearing on the show cause orders, Despite this statement by the court, Respondent did not raise this preemption argument at the July 2 hearing. However, Respondent did raise the issue in this appeal, claiming state courts lack jurisdiction over cases involving the use of amateur radio.
Although Respondent did not reassert his preemption argument at the July 2, 2019 hearing, the issue involves a question of subject matter jurisdiction, which cannot be waived. See Johnson v. Hopkins, 432 S.W.3d 840, 843-44 (Tenn. 2013) (citing 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)). Therefore, it is immaterial whether Respondent reasserted the defense at the July 2 hearing. It may be raised and considered in this appeal. Whether an action of a state court is preempted by federal law is reviewed de novo. Giggers v. Memphis Hous. Auth., 363 S.W.3d 500, 504-05 (Tenn. 2012) (citing Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010)).
"Preemption can arise either in the form of explicit legislation by Congress or when federal legislation implicitly conflicts with state law." Id. at 504 (citi...
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