         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   May 23, 2001 SESSION

               STATE OF TENNESSEE v. BEN WARREN MILLER

                     Appeal from the Criminal Court for Sullivan County
                          No. C43,538    Phyllis H. Miller, Judge


                                 No. E2000-03038-CCA-R3-CD
                                        August 2, 2001

Pursuant to Tennessee Code Annotated sections 55-10-601 to 55-10-617, the State of Tennessee
filed a “petition and notice” to have the Appellant/Respondent, Ben Warren Miller, declared an
Habitual Motor Vehicle Offender. The Appellant filed, in one pleading, an “Answer and Motion to
Dismiss.” In the answer, the Appellant admitted all material allegations which would support a
judgment declaring him to be an habitual motor vehicle offender. In his motion to dismiss, the
Appellant argued that no summons was issued with the petition, and the trial court violated the
Tennessee Rules of Civil Procedure in signing an order which required, in part, that Appellant “may
be held in violation of this order” if he did not appear and defend the petition to be declared an
habitual motor vehicle offender. The trial court denied the motion to dismiss and rendered a
judgment declaring Appellant to be an habitual motor vehicle offender. On appeal, the Appellant
does not challenge the substantive grounds for having him declared an habitual motor vehicle
offender. However, in three issues, he argues that the judgment should be reversed and the petition
dismissed because: (1) The trial court’s order entered subsequent to the filing of the petition
required Appellant to appear and defend or “he may be held in violation of this order,” (2) the trial
court’s order giving notice of the hearing on the petition was not signed by an assistant district
attorney, (3) the trial court did not have the authority to issue an order directing the Appellant to
appear at a hearing on the petition and did not have the authority to state in the order that he might
be held in violation of the order if he did not appear and defend the petition. We affirm the judgment
of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
ROBERT W. WEDEMEYER , J., joined.

Thomas McKinney, Jr. and Clyde L. Tootle, Kingsport, Tennessee, for the appellant, Ben Warren
Miller.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Robert Montgomery, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                OPINION

        Tennessee Code Annotated section 55-10-608 provides as follows:

        55-10-608. Order of court on petition. – (a) Upon the filing of the petition, the
        court shall make an order directing the individual (defendant) named therein to
        appear before the court to show cause why the defendant should not be barred from
        operating a motor vehicle on the highways of this state.

        (b) The order of the court shall specify a time certain, not earlier than thirty (30) days
        after the date of service of the petition and order, at which the defendant shall first
        appear before the court.

       Pursuant to this statute, after the filing of the petition in this cause by the State, the trial court
entered an order as follows:

        TO THE ABOVE NAMED RESPONDENT [WARREN MILLER]:

                You are hereby ordered to appear in the Criminal Court for Sullivan County,
        at the Justice Center, Blountville, Tennessee, on March 10, 2000, at 1:30 p.m., [to]
        show cause why you should not be barred from operating a motor vehicle upon the
        highways of the State of Tennessee according to the Petition being served upon you.

                If you fail to appear as ordered herein, you may be held in violation of this
        Order and judgment by default may be rendered against you for the relief demanded
        in the Petition.

                ENTER:

                                                                          /s/ Phyllis H. Miller
                                                                                Judge

        In his first issue, the Appellant argues that it was improper for the trial court to include in this
order the language that by failing to appear and defend the petition that he might “be held in
violation of this order.” He argues that this language was “clearly erroneous and unlawful” and that
as a result, the judgment should be reversed and the petition dismissed. In his brief, Appellant makes
the rather novel argument that when a respondent to a petition to be declared an habitual motor
vehicle offender does not contest the grounds to grant the petition and receives notice of the petition,
“he should be allowed to go his way and let judgment be entered against him.” He argues that he
“would have been much better off financially” to have gone to work and not appeared in court to
contest the petition rather than be required to appear and, in effect, admit to the material grounds in
the petition.


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        Even if the trial court erred by adding the language in the order to which Appellant objects
on appeal, the error was clearly harmless. Appellant argues that he should have been allowed to not
feel compelled to appear in court, and allow a default judgment to be entered against him declaring
him to be an habitual motor vehicle offender. He has never contested the material allegations
substantiating him to be an habitual motor vehicle offender. Judgment was entered against him
declaring him to be an habitual motor vehicle offender. This issue is clearly without merit.

        In his second issue, the Appellant argues that since the order signed by the court pursuant to
Tennessee Code Annotated section 55-10-608 was not signed by an attorney for the State of
Tennessee, that the order issued pursuant to 55-10-608 should be dismissed and the judgment
declaring him to be an habitual motor vehicle offender should be reversed. In support thereof, he
relies upon Rule 11.01, Tennessee Rules of Civil Procedure, which requires in pertinent part “every
pleading, written motion, and other paper shall be signed by at least one attorney of record and the
attorney’s individual name, or, if the party is not represented by an attorney shall be signed by the
party.” (emphasis added). Rule 11, Tennessee Rules of Civil Procedure, clearly applies only to
pleadings, motions, or other papers filed by a party or the party’s attorney. It does not apply to orders
signed by the trial court, and this issue is without merit.

         In his final issue, the Appellant urges that the trial court’s order entered pursuant to
Tennessee Code Annotated section 55-10-608, setting the petition for hearing, should have been
dismissed because the State of Tennessee did not request that the trial court state in the order that
Appellant “may be held in violation of the Order” if he failed to appear in court and defend the
petition. Appellant claims that the lack of this request by the State in its petition violated Rule 8.01,
Tennessee Rules of Civil Procedure in that the State did not request in its demand for judgment that
the trial court grant the objectionable relief in the order.

        Again, even if error, it was clearly harmless error. The Appellant does not, in any shape,
form, or fashion, contest the validity of the material allegations of the petition. He, instead, objects
to a portion of the trial court’s order, which he asserts required him to take positive action (come to
court or be in violation of the court’s order). However, the Appellant could have simply allowed
default judgment to be taken against him (as permitted by the court’s order) declaring him to be an
habitual motor vehicle offender. This issue is without merit.

        For the reasons set forth in this opinion, the judgment of the trial court declaring Appellant,
Ben Warren Miller, to be an habitual motor vehicle offender, is hereby affirmed. Costs of the appeal
are taxed against the Appellant, Ben Warren Miller.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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