1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the case, may affirm, reverse or modify the ac tions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED February 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ DEBRA A. TIPTON, FROM THE SHELBY COUNTY CIRCUIT COURT, No. 84245-5 Appellee, THE HONORABLE KAY ROBILIO, JUDGE Vs. C.A. No. 02A01-9706-CV-00114 VACATED JOHN W. HARRIS, JR., John W. Harris, Jr ., Pro Se William Bryan Penn o

f Memphis Appellant. For Appellee

_________________________________________________ __________________________ _ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J.
This case involves the issuance of an “ Agreed Order o

f Protection” pur

suant toT.C.A. § 36-3-605 (1996). Respondent-appellant John W. Harris, Jr. appeals the issuance of the order, asserting (1) that the court did not have subject matter jurisdiction, (2) that he did not agree to the issuance of the order, and (3) that the order w as imp roperly granted because he was not afforded an opportunity to be heard. Appellee Debra Tipton sought an Order of Protection alleging that her former boyfriend, J ohn W. Harris, harassed and threatened her when she tried to terminate their ten yea r relationship. Tennessee Code A nnotated § 36-3-6

02 provides that “[

a]ny and all

who have been subjectedto or threatened with abuse by a present or former adult family or household member may seek” an order of protection. At the time the order was issued, t he phrase “fa mily or household

member” included: “Persons living as spouses”; and “[o]ther persons jointly residing in the same dwelling u nit, who are eighteen years of age or older, or who are emancipated.” T.C.A. § 36-3-601(4) (1996). Ms. Tipton alleged that she had lived with Mr. Harris for approximately

four months in 1992 and that her attempts to terminate the relationship had failed. On January 6, 1997 the trial court issued an ex parte Order of Protection pursuant

to T.C.A. §2

36-3-605 and set the matter for a hearing as req

uired. However

, service upon the

Respondent, Dr. Harris,

was defective because he was served only one day prior to the hearing, rather than

a minimum of five days as required by T.C.A. § 36-3-605(c). Dr. Harris, acting pro se , wa s present at the hearing on Janua

ry 15, 1997, but arg

ued that the court

didnot have subject matter jurisdiction over the dispute because the parties did not share the requisite relationship to warrant issuance of an order of pr ote ction . (i.e. the parties were not “family or household” members within the meaning of the statute). There is no transcript of the hearing available, but it appears that Dr. Harris’ o bjec tions did not address the issues of service or personal jurisdiction, but instead were confined to the issue of subject matter jurisdiction. Dr. Harris did not testify at the hearing apparently because he became argument ative and had to be removed from the courtroom. The court issued a reciprocal “Agreed Order of Pro tec tion” on January 15, 1997, effective for

one year. The order states in part: “By agreement of the parties, the Court makes no findings of fact; no testimony has been offer ed; and the Respond

ent has made no ad

missions with

reference to this proceeding, by virtue of his consent to this decree, through his attorney or ot her wise.” Dr. Harris filed a mo tion to vacate the trial court’s protective order, and the record conta ins an order dated February 28, 1997 titled “Consent Order on Motion to Vacate or Set Aside Agreed Order of Protection.” We note, however, that the order contains no signature of counsel or the parties, nor does the order contai n a certif ication of service by the clerk. Therefore, there is no effective entry of the order. Tenn.R.Civ.P. 58. Moreover, the transcript of the hearing on this

motion indicates that the court’s action in denying the motion was definitely not by c

onsent of the appe

llant. Although the protective order in question h as now expired, w

e choose to entertain this appeal because this type of situation is subject to repetition and often evades review. In r e Helvenston , 658 S.W.2d 99, 101-1 02 (Tenn. App. 198 3); Dockery v. Dockery , 559 S.W.2d 952 (Tenn. App. 1977). Furthermore, Dr . Harris is justifiably concerned with the possible effect that the issuance of such an order could have on his reputation. Since no findings of fact were made by the trial court, we review the reco rd de novo . T.R.A.P. 13(d). Dr. Harris’s issue regarding the subject matter jurisdiction of the trial cou rt is without3

merit. Subject matter jurisdiction is the power of the court to hear a nd det ermine cases of the particular class at issue. The

circuit court certain

ly has the power to

hear and dispens

e with petitions seeking orders of protection. T.C.A. § 36-3-601(3)(A) (1996). Whether the petitioner meets the statutory requirements for issuance of such an order is a question for the co urt to decide, but it is unrelated to the issue of subject matter jurisdiction. We decline t o address whether Dr. Harris’s due

process rights we

re violated beca

use we find that the “Agreed Order of Protection” wa

s erroneously en

tered and must be v

acated on other

grounds. Despite the ch aracterization of the order as “Agreed,” Dr. Harris’s signature doe s not appear thereon and tran

scripts of su

bseq uent proceedings indicate that Dr . Harris adaman

tly contestedthe proceedings. In the absence of an agreement between the parties, the cour

t must find that “the petitioner has proved the allegation of

abuse by a preponderance of the evidence.” T.C.A. § 36-3-605(b) (1 996). Although the s tatute does not exp

licitlyrequire writtenfindings, the petitioner must still

prove her case . Since the order states specifica

lly that “no testimony has been offered” and that “the Court makes no findings of fact,” there is apparently no legal basis for issuance of the order. Moreover, the technical requirements for entry of the order have not been met. The order wa

s not sig ned by either of the parties or their counsel, nor has the clerk certified that service on the parties or their counsel had been achieve d as a subst

itute for the signatures of the parties as required by Rule 58 of the TennesseeRules of Civil Procedure. See Grantham v. Tennessee State Bd. of Equalization , 794 S.W.2d 751 (Tenn. App. 1990). The order of the tria

l court is vacate

d. Costs of the appe

al a re ass essed against the appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE