                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 November 8, 2001 Session

IN RE: THE MATTER OF JOHN ADAMS, DECEASED, ET AL. v. CITY OF
        LEBANON, TENNESSEE v. THE TENNESSEAN, ET AL.

                  Direct Appeal from the Circuit Court for Wilson County
                             No. 11505    Clara Byrd, Judge



                   No. M2001-00662-COA-R3-CV - Filed February 7, 2002


This appeal challenges the jurisdiction of the trial court to issue a protective order sealing a
settlement agreement between the City of Lebanon, Tennessee, and a private citizen, Mrs. Lorrine
Adams. The trial court issued the protective order in response to the City’s motion, a motion which
followed a request by The Tennessean, a daily newspaper, for information regarding the settlement.
The protective order was issued ex parte, despite the fact that no action had been filed against the
City by Mrs. Adams or by The Tennessean. We hold that the circuit court lacked jurisdiction to
enter the protective order. The order is therefore void and vacated.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated.

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS , J., joined.

Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for the Appellant, The Tennessean.

Rich Cassidy, Nashville, Tennessee, for the appellee, Lorrine Adams.

Larry Stewart, Charles W. Cook, III, Nashville, Tennessee, and Peggy F. Williams, Lebanon,
Tennessee, for the appellee, City of Lebanon, Tennessee.

                                            OPINION

        Mrs. Lorrine Adams retained counsel to represent her in claims against the City of Lebanon,
Tennessee (“City”), following an unfortunate incident during which her husband was killed by a
police officer executing a search warrant at the wrong house. The City referred the matter to its
insurance carrier, and a settlement agreement was reached through mediation on December 16, 2000.
This agreement bound the City, Mrs. Adams, and the insurance carrier, and contained a
confidentiality clause precluding disclosure of its terms. No cause of action was ever filed by Mrs.
Adams against the City.
        Shortly thereafter, The Tennessean, a daily Nashville newspaper, requested a copy of the
settlement agreement from the City attorney. The City denied this request based on the
confidentiality agreement. Following this exchange, on December 18, the City filed a motion in
Circuit Court for Wilson County seeking a protective order sealing the agreement. The City’s
motion was heard ex parte on December 19, and was granted on December 21. The City and Mrs.
Adams were represented at the hearing, while The Tennessean received no notice of it. The
Tennessean learned of the order in January, 2001, when the City attorney invoked the order and
denied its repeated request for the terms of the settlement.

         The Tennessean filed a motion to intervene in the matter and a motion to set aside the
protective order on January 17, 2001. The court granted the motion to intervene, but denied the
motion to set aside the protective order. The Tennessean also filed a petition for access in chancery
court pursuant to the Public Records Act, codified at Tenn. Code Ann. § 10-7-101 et seq., seeking
the settlement agreement and other documents made or received by the City in connection with Mrs.
Adams’ claim. The Tennessean now appeals the order of the circuit court denying its motion to set
aside the protective order. The public records action in chancery court is pending our decision in this
appeal.

                                                        Issues

       The parties raise several issues upon appeal, most of which pertain to matters to be decided
under the Public Records Act. We believe that to address these issues at this juncture would be
commensurate to an advisory opinion, which this Court is precluded from issuing. 1 We therefore
confine our decision to the threshold issues raised by The Tennessean. These issues, as we perceive,
them are:

       (1)         Whether the circuit court had jurisdiction to enter a protective order placing
                   under seal a settlement agreement between the City of Lebanon and Mrs.
                   Adams, when no action had been commenced against the City by Mrs.
                   Adams or against The Tennessean by the City;

       (2)         Whether Rule 31 of the Tennessee Supreme Court operates to make a
                   settlement agreement between the City and a private citizen confidential
                   when:
                   (a) the parties were never before the court and the settlement
                   negotiations were not initiated pursuant to Rule 31 and
                   (b) Rule 31 expressly recognizes that when information is “required
                   by law” to be disclosed, it is not subject to the Rule’s confidentiality
                   provision.




       1
           The jurisdiction of the Court of App eals is appellate only. Tenn. Cod e Ann . §16-4-108 (a)(1) (1994).

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                                        Standard of Review

       The facts in this case are undisputed, and the issues raised concern only matters of law. Our
review of the trial court’s legal conclusions is de novo upon the record, with no presumption of
correctness. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A.,
986 S.W.2d 550, 554 (Tenn. 1999); Tenn. R. App. P. 13(d).

                                             Discussion

         The initial proceedings as commenced by the City of Lebanon in this case can best be
described, as perceived by this Court, as an attempt to thwart the Public Records Act. Although no
Public Records Act petition had yet been filed against the City by The Tennessean, the City’s
motion for a protective order was made in direct response to The Tennessean’s request for
documents pertaining to the settlement agreement between the City and Mrs. Adams. The City
argues in its brief and at oral argument that such an order was necessary to protect the privacy and
well-being of Mrs. Adams, as well as to prevent any undue influence on the criminal case against
the police officer involved in the killing of Mr. Adams. We are sensitive to both concerns. A pre-
emptive strike in circuit court, however, was not necessary to protect the City’s interests at this
juncture. The City simply could have refused to release the documents. Had The Tennessean then
filed a Public Records Act petition in chancery court, the City could then have properly litigated the
issues, including the issue of whether some or all of the documents are exempted from public
inspection. The Public Records Act provides, in pertinent part:

       All state, county and municipal records . . . except any public documents authorized
       to be destroyed by the county public records commission . . . shall . . . be open for
       personal inspection by any citizen of Tennessee, and those in charge of such records
       shall not refuse such right of inspection to any citizen, unless otherwise provided by
       state law.

Tenn. Code Ann. § 10-7-503 (Supp. 2001).

       The Act further states:

               (a) Any citizen of Tennessee who shall request the right of personal
       inspection of any state, county or municipal record as provided in § 10-7-503, and
       whose request has been in whole or in part denied . . . . shall be entitled to petition
       for access to any such record and to obtain judicial review of the actions taken to
       deny the access.
               (b) Such petition shall be filed in the chancery court for the county in which
       the county or municipal records sought are situated, or in any other court of that
       county having equity jurisdiction. . . . Upon filing of the petition, the court shall,
       upon request of the petitioning party, issue an order requiring the defendant or
       respondent party or parties to immediately appear and show cause, if they have any,


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       why the petition should not be granted . . . . The court may direct that the records
       being sought be submitted under seal for review by the court and no other party. The
       decision of the court on the petition shall constitute a final judgment on the merits.
                ....
                (d) The court, in ruling upon the petition of any party proceeding hereunder,
       shall render written findings of fact and conclusions of law and shall be empowered
       to exercise full injunctive remedies and relief to secure the purposes and intentions
       of this section, and this section shall be broadly construed so as to give the fullest
       possible public access to public records.
                (e) Upon a judgment in favor of the petitioner, the court shall order that the
       records be made available to the petitioner unless:
                (1) There is a timely filing of a notice to appeal; and
                (2) The court certifies that there exists a substantial legal issue with respect
       to the disclosure of the documents which ought to be resolved by the appellate courts.

Tenn. Code Ann. § 10-7-505 (1999) (emphasis added).

        When construing a statute, courts must, insofar as possible, ascertain and give effect to the
intent of the Legislature. Memphis Publ’g Co. v. Holt, 710 S.W.2d 513, 516 (Tenn. 1986). A plain
reading of § 505(d) evidences the legislature’s intent to secure the public’s right to access to
governmental documents. However, the statute also recognizes the necessity of withholding some
information from the public domain. Section 503 states that access to certain records may be
precluded by other State laws and are therefore excepted from the Act. Tenn. Code Ann. § 10-7-503;
see Appman v. Worthington, 746 S.W.2d 165, 166 (Tenn. 1987). Section 504 exempts certain
records deemed confidential, and cross-references other statutes pursuant to which described records
are confidential and therefore exempted from the Act. Tenn. Code Ann. § 10-7-504. See Appman
v. Worthington, 746 S.W.2d at 166. Records sealed pursuant to the Tennessee Rules of Civil
Procedure, or exempted from disclosure by the Tennessee Rules of Criminal Procedure, are also
excepted from disclosure under the Act since these Rules are “laws” of this State. See Ballard v.
Herzke, 924 S.W.2d 652, 662 (Tenn. 1996); Appman v. Worthington, 746 S.W.2d at 166.

        The records at issue in this case were sealed by protective order of the circuit court. As noted
above, records properly sealed pursuant to the Tennessee Rules of Civil Procedure are exempt from
disclosure under the Public Records Act. The Tennessean, however, asserts that the circuit court
lacked jurisdiction to issue the protective order because there was no action before the court. We
agree.

         The Tennessean asserts that the circuit court lacked jurisdiction to issue the protective order
because there was no action before the court. The Tennessee Rules of Civil Procedure provide that
all civil actions are commenced by filing a complaint with the clerk of the court. Tenn. R. Civ. P.
3. A complaint is required for the commencement of an action. Old Hickory Eng. & Mach. Co.
v. Henry, 937 S.W.2d 782, 784 (Tenn. 1996). We find no authority, and the City cites none, for the
proposition that an action may be commenced by motion. To the contrary, “Rule 7 provides separate


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treatment for pleadings and for motions and other papers, and court decisions applying the Tennessee
Rules of Civil Procedure have underscored that distinction . . . . it is important not to read the term
‘pleading’ as encompassing a motion.” Robert Banks, Jr. and June F. Entman, Tennessee Civil
Procedure § 5-1(a) (1999).

         The City argues that its motion for a protective order should be construed as a complaint
pursuant to Tenn. R. Civ. P. 8. Rule 8 provides: “A pleading which sets forth a claim for relief . .
. shall contain (1) a short an plain statement of the claim showing that the pleader is entitled to relief,
and (2) demand for judgment for the relief the pleader seeks.” Tenn. R. Civ. P. 8.01. The City notes
that Rule 8.06 requires that “[a]ll pleadings shall be so construed as to do substantial justice,” and
that courts review complaints in accordance with their substance, rather than their form. The City
cites Kaylor v. Bradly, 912 S.W. 2d 728 (Tenn. Ct. App. 1995) and Brown v. City of Manchester,
722 S.W.2d 394 (Tenn. Ct. App. 1986) for the proposition that its motion should be regarded by this
Court as a complaint. Neither Kaylor nor Brown, however, address the question of the complete
lack of a complaint, but rather the sufficiency of a complaint for purposes of motions to dismiss and
motions for summary judgment, respectively, based upon them.

        We believe the City’s interpretation stretches the reach of Rule 8. Rule 8 simplifies the
requirements of what must be pled in a complaint, it does not do away with the pleadings and with
the requirement that an action be commenced with a complaint. The City filed a motion for a
protective order, a motion normally filed pursuant to discovery under Rule 26.03. It is not a
complaint against The Tennessean. Moreover, “[t]he essential function of the pleadings [filed
pursuant to rule 7] is simply to give notice of a claim or defense.” Robert Banks, Jr. and June F.
Entman, Tennessee Civil Procedure § 5-4(a)(1999). The order granting this motion was issued ex
parte, thus it can by no stretch of the imagination be viewed as serving to give notice of a claim.
Additionally, we find it difficult to imagine what the City’s complaint against The Tennessean
would be. We find no authority, and the City cites none, for the proposition that a newspaper should
not request documents from a governmental entity. On the contrary, it is the right of access to
governmental documents that the Public Records Act secures. Since there was no complaint filed
and no action pending before the court, either between the City and The Tennessean or between the
City and Mrs. Adams, the court below acted without jurisdiction in issuing the protective order
sealing the settlement agreement.

        Even if we were to stretch the reach of Rule 8 and regard the City’s motion as a complaint,
we would vacate the court’s order based on a lack of subject matter jurisdiction. Subject matter
jurisdiction “relates to the right of the court to adjudicate, or to make an award through the remedies
provided by law upon facts proved or admitted in favor of, or against, persons who are brought
before the court under sanction of law.” 17 Tennessee Jurisprudence Jurisdiction § 2 (1994). It
concerns the authority of a court to hear a controversy. Meighan v. U.S. Sprint Communications,
924 S.W.2d 632, 639 (Tenn. 1996). Subject matter jurisdiction relates to the nature of the claim and
relief sought. Id. If a court acts without subject matter jurisdiction, its orders are void. Riden v.
Snider, 832 S.W.2d 341, 343 (Tenn. Ct. App. 1991). Such orders are a nullity and may be
collaterally attacked. County of Shelby v. City of Memphis, 365 S.W.2d 291, 292 (Tenn. 1963).


                                                   -5-
        The City’s motion stated that the order was necessary because The Tennessean demanded
a copy of the settlement agreement under the Public Records Act. Insofar as the court granted the
motion in response to The Tennessean’s demand, it acted without subject matter jurisdiction. Under
the Public Records Act, general subject matter jurisdiction over issues relating to demands for public
documents is vested in chancery court. See Tenn. Code Ann. § 10-7-505. Thus circuit court lacked
subject matter to adjudicate issues relating to a demand for documents pursuant to the Act. Its order
is therefore void. See Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996).

       Finally, we address the question of whether the protective order may be granted pursuant to
the confidentiality provisions of Tennessee Supreme Court Rule 31. Rule 31 governs alternative
dispute resolution. The rule states:

       The standards and procedures adopted under this rule apply only to Rule 31 dispute
       resolution proceedings and the dispute resolution neutrals serving pursuant to Rule
       31. They do not affect or address the general practice of alternative dispute
       resolution in the private sector outside the ambit of Rule 31.

               Pursuant to the provisions of this Rule, a court may order the parties to an
       eligible civil action to participate in an alternative dispute resolution proceeding in
       accordance with this Rule.

Tenn. Sup. Ct. R. 31 § 1.

        Section 3 of the rule provides that alternative dispute resolution may be initiated by motion
of either party, or upon motion of the court. Tenn. Sup. Ct. R. 31 § 3. Section 6 provides:

       A Rule 31 dispute resolution neutral or settlement judge shall preserve and maintain the
       confidentiality of all alternative dispute resolution proceedings except where required by law
       to disclose the information.

Tenn. Sup. Ct. R. 31 § 6. Rule 31 applies to court ordered mediation, which may be ordered by the
court on its own motion, or on motion of a party. Harris v. Hall, No. M2000-00784-COA-R3-CV,
2001 WL 21504893, at *4 (Tenn. Ct. App. Nov. 28, 2001). To be so ordered, there must therefore
be an underlying matter before the court. The rule expressly does not govern private alternative
dispute resolution. Sup. Ct. R. 31 § 1. Mrs. Adams never initiated a claim against the City of
Lebanon. Accordingly, the settlement mediation between Mrs. Adams and the City did not take
place in the context of a Rule 31 court order. Although the courts and legislature of this State
recognize and commend arbitration as a means of dispute resolution, (see Buraczynski v. Eyring,
919 S.W.2d 314, 317 (Tenn. 1996)), Rule 31 governing court annexed arbitration cannot be invoked
here to justify a preemptive protective order in a matter that was never before the court.




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                                              Conclusion

        The trial court in this matter acted without jurisdiction when it issued the protective order
sealing the terms of the settlement agreement between the City of Lebanon and Mrs. Adams, where
no action had ever been before the court. Further, even if we view the City’s motion for a protective
order as a complaint for the purposes of initiating an action against The Tennessean, the circuit court
lacked subject matter jurisdiction to adjudicate what is primarily a Public Records Act dispute.
Issues pertaining to The Tennessean’s right of access to the settlement agreement, including whether
the agreement is a public record and whether it is otherwise exempt from the Public Records Act
pursuant to another State law, are properly litigated in chancery court. Finally, the confidentiality
provisions of Tennessee Supreme Court Rule 31 may not be invoked with respect to a private
alternative dispute resolution of a matter never before the court.

        In light of the foregoing, the protective order of the trial court is vacated. Costs of this appeal
are taxed to the appellee, the City of Lebanon, Tennessee.



                                                         ___________________________________
                                                         DAVID R. FARMER, JUDGE




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