                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                   December 15, 2010 Session

                          HELEN M. LAND v. JACK CASTEEL

                     Appeal from the Circuit Court for McMinn County
                      No. 28519, 28520     Lawrence Puckett, Judge


                    No. E2010-00593-COA-R3-CV - Filed March 8, 2011


The appellant appeals the trial court’s issuance of orders of protection against him. The
appellant’s sister and brother-in-law filed petitions for ex parte orders of protection and
alleged that on two separate occasions, the appellant fired shots toward their home. The
appellant denies the allegations. After a hearing, the trial court found by a preponderance
of the evidence that entry of the orders of protection was necessary. We affirm.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Affirmed; Case Remanded

J OHN W. M CCLARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.

Steven B. Ward, Madisonville, Tennessee, for the appellant, Jack Casteel.

Robert Louis Jolley, Jr., Knoxville, Tennessee, for the appellee, Helen M. Land.

                                               OPINION

                                         I. BACKGROUND

      This appeal involves two orders of protection.1 Helen M. Land and her husband,
Samuel Land, Jr. (collectively, “Petitioners”) filed petitions for orders of protection against
Jack Casteel, Mrs. Land’s brother. Petitioners sought orders of protection after Casteel fired


        1
          Mr. Casteel filed two separate appeals for each order of protection restraining him from having
contact with Helen Land and Samuel Land, Jr.. Because the separate orders of protection arise from the same
set of facts, this court, upon its own motion, consolidated these cases for appeal pursuant to Tenn. R. App.
P. 16(b).
gunshots toward their property on two separate occasions.

       On October 30, 2009, the ex parte orders of protection were issued against Casteel.
Thereafter, Casteel’s motion for continuance was granted and a hearing was held in
December of 2009. At the hearing, Mrs. Land testified that in June of 2009, while
sunbathing on the deck behind her home, she heard a gunshot. Mrs. Land testified that she
saw Casteel with a gun in his hand, but she could not discern the type of gun. On a separate
instance in June of 2009, Mr. Land testified that he heard a gunshot while standing at the
entrance to the garage. After hearing the shot, Mr. Land saw Casteel standing near his barn,
but he did not see a weapon. Mr. Land further stated that he was in fear of his life because
Casteel had previously threatened to kill him. No photographs of the bullet holes were
offered into evidence, and no other incidents occurred after June of 2009.

        Mrs. Land also explained the reasons for the delay in pursuing a protective order at
the hearing. Mrs. Land stated that she “had a lot going on” including suffering a stroke in
June of 2009 and the passing of her son and a co-worker. She testified to being in fear for
her life because of Casteel’s actions. Casteel also testified at the hearing and denied all
allegations. He testified that he lived in a camper in Monroe County during the entire month
of June of 2009. Kathy Sulzer, Casteel’s girlfriend, testified and corroborated that Casteel
was away during June and that he had not fired any guns in her presence.

       After hearing the evidence, the trial court determined by the preponderance of the
evidence that Petitioners were entitled to orders of protection. Casteel then filed a motion
for a new trial as to both orders of protection, which the trial court denied. This appeal
ensued.
                                        II. ISSUES

       We restate the issues raised by Casteel:

       1. Whether the preponderance of the evidence supports the trial court’s
       finding of “domestic abuse” as defined in Tenn. Code Ann. § 36-3-605(b).

       2. Whether the preponderance of the evidence supports the trial court’s
       issuance of orders of protection.

       As an additional issue, Petitioners submit that they are entitled to an award of
       reasonable attorney’s fees and costs pursuant to Tenn. Code Ann. § 36-3-
       617(a).




                                             -2-
                              III. STANDARD OF REVIEW

        This case was adjudicated without a jury. Therefore, we review the decision de novo
upon the record of the proceedings with a presumption of correctness as to the findings of
fact of the trial court. See Tenn.R. App. P. 13(d); Boarman v. Jaynes, 109 S.W.3d 286, 289-
90 (Tenn. 2003). This court imputes no presumption of correctness on the trial court’s
conclusions of law. Rutherford County v. Wilson, 121 S.W.3d 591, 595 (Tenn. 2003);
Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). The judgment of the trial
court should be affirmed, absent errors of law, unless the preponderance of the evidence is
against those findings. Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). In cases where
the trial court’s factual findings depend on a determination of witness credibility, we will not
reevaluate that assessment in the absence of clear and convincing evidence to the contrary.
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); Newman v. Woodard, 288 S.W.3d 862,
865 (Tenn. Ct. App. 2008).

                                     IV. DISCUSSION

                                              A.

      The primary issue before us is Casteel’s challenge to the sufficiency of the evidence
supporting the trial court’s issuance of protective orders in favor of Petitioners. He denies
that the two incidents occurred and argues that the proof preponderates against the trial
court’s findings. A petitioner seeking an order of protection must establish domestic abuse
by a preponderance of the evidence. Tenn. Code Ann. § 36-3-605(b) (2010); Collins v.
Pharris, No. M1999-00588-COA-R3-CV, 2001 WL 219652, at *5 (Tenn. Ct. App. M.S.,
March 7, 2001). Tenn. Code Ann. § 36-3-601(1) (2010) defines abuse as “inflicting, or
attempting to inflict, physical injury on an adult or minor by other than accidental means,
placing an adult or minor in fear of physical harm, physical restraint, or malicious damage
to the personal property of the abused party.” An individual commits “domestic abuse”
under Tenn. Code Ann. § 36-3-601(4) when the victim is one of the following:

       (A) Adults or minors who are current or former spouses;
       (B) Adults or minors who live together or who have lived together;
       (C) Adults or minors who are dating or who have dated or who have or had a
       sexual relationship. As used herein, “dating” and “dated” do not include
       fraternization between two (2) individuals in a business or social context;
       (D) Adults or minors related by blood or adoption;
       (E) Adults or minors who are related or were formerly related by marriage; or
       (F) Adult or minor children of a person in a relationship that is described in
       subdivisions (5)(A)-(E);

                                              -3-
Tenn. Code Ann. § 36-3-601(5) (2010).

        The trial court found that Petitioners agreed the two incidents occurred where shots
were fired and that Casteel was present at both incidents. Although Casteel denied firing
shots, the trial court resolved issues of credibility in favor of Petitioners, finding that Casteel
“engaged in threatening and assaultive behavior.”

        Under the applicable standard of review, we presume that the trial court’s findings are
correct. “For the evidence to preponderate against a trial court’s findings of fact, it must
support another finding of fact with greater convincing effect.” Rawlings v. John Hancock
Mut. Ins. Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001) (citation omitted). This court also
accords great weight to the trial court’s findings that are based on a determination of the
witnesses’ credibility because it is the trial court who observed the witnesses and had an
opportunity to assess their credibility. In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn.
1997); Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000). From reviewing the
evidence contained in the record and giving proper deference to the trial court’s assessment
of the witnesses’ credibility, we cannot conclude that the evidence preponderates against the
trial court’s issuance of protective orders in favor of Petitioners. Therefore, we affirm.

                                                B.

       Petitioners seek an award of reasonable attorney’s fees and costs incurred in defending
this appeal. Tenn. Code Ann. § 36-3-617(a) (2010) provides:

       (a) Notwithstanding any other law to the contrary, no victim shall be required
       to bear the costs, including any court costs, filing fees, litigation taxes or any
       other costs associated with the filing, issuance, registration, service, dismissal
       or nonsuit, appeal or enforcement of an ex parte order of protection, order of
       protection, or a petition for either such order, whether issued inside or outside
       the state. If the court, after the hearing, issues or extends an order of
       protection, all court costs, filing fees, litigation taxes and attorney fees shall be
       assessed against the respondent.

In the recent decision of Brown v. Vaughn, No. E2010-00373-COA-R3-CV, 2010 WL
3767123, at *8 (Tenn. Ct. App. E.S., Sept. 28, 2010), this court addressed awarding
reasonable attorney’s fees and costs when a petitioner defends an order of protection on
appeal. In Brown, this court, after affirming the trial court’s extension of an order of
protection, held that Tenn. Code Ann. § 36-3-617(a) permitted an award of reasonable
attorney’s fees and costs. Id. In line with the holding in Brown, we find that Tenn. Code
Ann. § 36-3-617(a) entitles Petitioners to an award of reasonable attorney’s fees and costs

                                                -4-
in defending this appeal.

                                     V. CONCLUSION

       The judgment of the trial court is affirmed. This case is remanded to the trial court,
pursuant to applicable law, for a hearing on the issue of Petitioners’ reasonable attorney’s
fees and costs on appeal and for the enforcement of the trial court’s order and collection of
costs assessed in the trial court. Costs on appeal are taxed against the appellant, Jack Casteel.




                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE




                                               -5-
