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Ely
Ely, Counselor at Law
Category: Legal
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I recently had a Defamation/Libel "hearing" in a county in

Customer Question

I recently had a Defamation/Libel "hearing" in a county in Tennessee. The Judge ruled that the complaint was filed in the improper venue and that it would be transferred to the venue of the defendant in a different county in the same state. The hearing was held on September 16, 2013 and the Judge has not yet (2 weeks later) signed the "order" transferring the case to the defendant's venue. Can you advise is there is a specific time period in which the Judge ruling on the transfer has to sign the order, moving the case to the new venue? Thank you. Frank Visconi
Submitted: 11 months ago.
Category: Legal
Expert:  Ely replied 11 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. There is not rule in TN Rules of Civil Procedure that states when the Court should render a written version of the order.

Normally what happens is that one (or both) of the parties provide a proposed order for the Judge to sign. The Judge will sign the order once it makes its decision. The Judge retains the right to modify the order as needed and sometimes the Judge will cross out and/or add things on the order by hand before typing it. But rarely does the Court type out its own order from scratch.

It may be and very much likely is that neither party gave the Court a proposed order on the matter. Because of this, the Judge has not signed anything.

Someone in your situation may wish to contact the clerk and confirm if this is the issue. If so, a copy of a proposed order may be submitted (and a copy sent to opposing party), and a Judge will normally sign it without a hearing (unless the other party objects to the verbiage and/or wishes to submit their own version).

I hope this helps and clarifies. Good luck.

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Customer: replied 11 months ago.


Both I (plaintiff) and the defendant were present at the hearing. The judge, after reading the complaint and the defendant's motion to change venue, declared that his/my county court was the wrong venue and the case belonged in the defendant's county circuit court. That is all he said and then he left. Before leaving I asked what was next. The judge said that my file would be transferred to the defendant's venue. I called the clerk the next day and I was told that the file could not be transferred until the judge signed an "order" transferring the case. That was two weeks ago. As of this date he has not signed or issued any order. I talked to the clerk again and she told me she could not transfer the file to the new court until the judge signed the order. According to the TN Rules of Civil Procedure, the "clerk shall 'forthwith' transmit the original papers, together with a transcript of all docket entries". The question is, how do I determine what "forthwith" means. I think two weeks is more than enough time for the judge to have signed whatever document is necessary to allow the clerk to transfer the file to the new court.

 

Actually, the TRCP states "After the court orders a change of venue, the clerk of that court shall...." She is telling me that the judge has to sign an order FIRST. How much time is too much time for him to "delay" the transfer of my case?"

Expert:  Ely replied 11 months ago.
Frank,

Thank you for your follow up. I am not sure if you read my entire answer or not.

I am going to post it below again, just in case:

I am very sorry for your situation. There is not rule in TN Rules of Civil Procedure that states when the Court should render a written version of the order.

Normally what happens is that one (or both) of the parties provide a proposed order for the Judge to sign. The Judge will sign the order once it makes its decision. The Judge retains the right to modify the order as needed and sometimes the Judge will cross out and/or add things on the order by hand before typing it. But rarely does the Court type out its own order from scratch.

It may be and very much likely is that neither party gave the Court a proposed order on the matter. Because of this, the Judge has not signed anything.

Someone in your situation may wish to contact the clerk and confirm if this is the issue. If so, a copy of a proposed order may be submitted (and a copy sent to opposing party), and a Judge will normally sign it without a hearing (unless the other party objects to the verbiage and/or wishes to submit their own version).


In summary:

The clerk cannot transfer the file without the order. A Court normally does not draft its own order. One of the parties has to provide the Court with a proposed order to sign that reflects the Court's oral decision. Once this is done, the clerk can transfer the file as needed...

The question is, how do I determine what "forthwith" means.

Forthwith means immediately. And this is true - the clerk is supposed to act immediately. But the clerk CANNOT until that order is in place... for which a party has to provide a proposed order that reflects the oral decision for transfer of venue that the Judge will then sign.

You see, some nuances are not in the statute or procedure codes. Some nuances simply arise from common law which we have inherited from the British. Such as, attire in Court. Where the Judge sits. How to act. And in some cases, some minor procedural points such as giving the Court proposed orders to sign.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.


Ok, I understand that but I don't think she, the clerk does. I've been dealing with this individual (clerk) for some time now and she is not very well versed on the processes. My last question to you is this: How do I do what you said to do? Do I file a brief/motion to the court asking that the court transfer my case to the new county or do I write a letter? I don't think she knows what she is talking about. I have been waiting all this time because she told me that she cannot transfer the case until HE signs an order telling her to do so. Your response is the first time I've heard that I have to do a "proposed order". Please advise the appropriate document to do that: Motion Brief; letter; ?? Thank you.

Expert:  Ely replied 11 months ago.
F,

Have you or the other party filed a proposed order with the Court that reflects the verbal decision of September 16, 2013?
Customer: replied 11 months ago.

NO, neither of us have done anything. The judge simple made his ruling and got up and walked out.

Customer: replied 11 months ago.

No one, neither the judge or the clerk provided any information at all. Both courts are in what I would classify as "hick" towns and getting information out of the clerk (or even the judge for that matter) is like pulling teeth. Like I said, the judge ruled, closed his notebook and got up and walked out. No instructions whatsoever. Clerk INSISTS he has to sign an order before she can transfer the case.

Expert:  Ely replied 11 months ago.
Then that is what has to be done. One may wish to:

1) File a proposed ORDER with the court that reflects the Judge's oral decision with a blank for the Judge to sign and send a copy to the opposing party;

2) Kindly ask the Clerk to present this to the Judge;

3) The clerk should, and once the Judge signs it, then the clerk should initiate the transfer.

Your response is the first time I've heard that I have to do a "proposed order". Please advise the appropriate document to do that: Motion Brief; letter; ?? Thank you.

No brief, no letter. Just a proposed order. This is not unusual. Rules for proposed orders are normally in court local rules, such as here, here, here, here, and here (just search "proposed order" on the page).

As you can see, this is an established practice.

A proposed order is simply a blank order reflecting the decision of the judge and having a space for signature and date. A good template for one is here.

Note that this is from a U.S. District Court in Illinois. But that is not the point. I chose it for the structure - heading, order name, brief introduction, orders, date, signature space.

This should be something akin to what is turned into one's court, of course with proper alterations.

And of course I cannot know for 100% fact that this is what is holding the matter up, although I am fairly certain.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87500
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Expert:  Ely replied 11 months ago.
Thank you for your gratuity.
Customer: replied 11 months ago.

No further questions. Your answer was absolutely correct. I submitted a Proposed Order, the judge signed it and it has been transferred to the defendant's venue. Thanks again.

Expert:  Ely replied 11 months ago.
Thanks for letting me know - great news!

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