### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE February 15, 2001 Session

City of Church

Hill, Tennessee

v. Patrick

H. Reynolds, II

I Appeal from the Circuit Court for Hawkins County No. 5089 J John K. Wilson, Judge FILED MARCH 12, 2001
No. E2000-01376-COA-R3-CV

Patrick H. Reynolds, III

(“Defendant”) was issued a Misdemeanor Cit ation alleging violations of multiple city ordinances of the City of Church Hill (“Plaintiff”) over a one-month period. Defendant was found guilty in the Church Hill City Court of violating these ordinances. Defendant appealed to the Hawkins County

Circuit Court which

likewise found the

Defendant guil

t y of violating the ordinances. The Circuit Court, however, found Defendant guilty of several violations on day s for which the Defendant was tried by the City Court with no finding of guilt

by the City

Court. Because Defendant

cannot be placed in double jeopardy for viol ations of these municipal ordinances, we
reverse the judgment of the Circuit Court finding Defendant guilty for violations on days for which Defendant

was tried by the

City Court with no finding of guilt made by the City Court. We affirm the Circuit Court’s

determination with

regard to the r

emaining violatio

ns.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed in Part and Reversed in Part; Case Remanded

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in

which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.

Dougl as T. J enkin s, Jo hnson City, T ennes see, f or the Appel lant P atric k H. Re ynolds , III.

K. Erickson Herrin, Johnson City, Tennessee, for the Appellee City of Church Hill, Tennessee.-2- OPINION Background
On March 2, 1999, Patrick H. Reynolds, II I. (“Defendant”) was issued a Misd emeanor Citation to appear in the Church Hill City Court. The citation was for violations of three municipal ordinances of the City of Church Hill (“Plaintiff”). The citation claimed violations of §§ 8-301, 8- 302, and 8-3 04 o f th e Ch urch Hil l Mu nic ipa l Co de o ccur rin g ove r a t hir ty o ne d ay p eriod. The applicable provi

sions of the Church

Hill Municipal Code a

re as follows:
8-301. Prohibited acts
. It shall be unla wful for the owne

r(s)
or occupant(s) of real

property within the municipal limits of Church Hill to allow litter, deb

ris, trash, o r discarded items of personal property to accumulate an

d remain on said pr

operty

. Any items of personal property which

are damaged, dilapidated, or which are lying
or stacked about the property in a state of disarray shall be deemed to be discarded

for the purposes of this chapter. A ll litter, trash, de

bris, and di scarded items of personal property shall be placed by th e property owner or occupant in secured refuse containers for prompt disposal. If the owner

or occupant desi

res to reta

in possession of personal property items which would otherwise f a ll within the prohibitions of this chapter, he o r she shal l place the items within a perm anen t[l y] enclosed

structure lawfully erected on the premises so
as to shield such items from the view of the public. The provisions of this chapter are not intended to allow t he operation of a motor vehicle repair shop on prop erty no t zoned for such a b usiness operation.
8-302. Vehicle

salvage parts regulated
. It shall be unlawful for the owner(s) or

occupant(s)

of real propert

y to allow new or used motor vehicle parts, ve

hic l e bodies, frames, or tires to be strewn around or upo n sa id r eal pro pert y. Motor vehicle parts, damaged or salvaged vehicle bodies an

d frames, and tir

es o f all kinds shall be contain ed , stored, or otherwise enclosed in a permanent structure lawfully erected on the premises. Any use of motor vehicle parts on said premises must comply with all applicable municipal zoning and building regulations.
8-304. Automobile storage lot permit
. The use of proper

ty within the co rporate limits as a storage lot or parking grounds for infrequently

operated, inoperabl e , untagged, or damaged motor vehicles is expressly forbidden unless the property owner or occupant obtains a special permit t o uti l ize his premises as a n automobile-3- stor age lo t. A business which repairs automobiles shall not be req uired to obtain such a permit unless automobiles are stored o r parked overnight on the premises. The permit shall be issued by the City’s Building In

spector and shall

s pec ify the permissible parking arrangement

of the vehicles upon the

premises so as to a

ssure access by municipal service

and emergenc

y vehicles t

o the parked vehicles and to the structures on the property. Businesses engag ed in the repair of motor vehicles shal l no t park or allow the parking of their
cus tomers’ inoperable vehicles upon the municipal rights of way adjacent to their premises. For the purpo ses of this Chapter, “infrequently

operated motor ve

hicle(s)” shall m

ean a motor vehic

le which has not moved from its present place of parking for more than fourteen (14) consecutive days. For the purpose of this Cha p ter, “inoperable

motor vehicle(s)

” inc ludes any vehicle with a flat tire, anyvehicle which will not start, or any vehicle incapable of bein g law ful ly op erat ed o n th e st reet s wi thi n th e Ci ty.
The penalty for a violation of any of these provisions is a fine of not less thanTwenty-Five Dollars ($25.00) nor more than One Hundred Dollars ($100.00) for each day that the provision is violated, with each day constituting a separate offense.

The chron ology of e

vents is important to

the resolution of th

e issues, and we w

ill attempt to piece together the events as they occurred. The record, however, is not entirely clear due in lar ge part to the fact that neither party provided this Court with a complete transc r ipt of th e hearings in the City Court.

Defendant

ori gina lly a ppe ared in t he C ity Cou rt o n Ma rch 1 6, 1 999 . On tha t da y, Defendant

claims that the Judg

e initially found him guilty of violating each of the three ordinances for one day. Defenda nt claims t hat the Ju dge stated he was entitled to notice of the alleged violations before he could be cited, and the Judge found him guilty of these violations on day s after he received the citation and notice, which w as Mar ch 2, 1999. Plaintiff claims that the Judge initially found Defendant

guilty of vi

o lating the ordinances for a period of twenty day s, but after Defendant convinced

the Judge that he was entitled to notice before he could be charged, the Judge reduced the fine to a one day

violation for each ordinance. The Judge ordered Defendant to return to court for
a “check-back” to see if any im provements had be

en made with reg

ard to the conditio

n of his property. As stated previously, neither Plaintiff nor D efendant provided this Court with a copy of the transcript of the proceedings which occurred on March 16, 1999, and no judgment was entered by the City Court on that date.

Defendant

initially was to return to the City Court for the “check-back” on April 20, 1999 , but the Judge was unavailable and the matter was reset for May 18, 1999. On Ma y 18, t h e parties returned to City Court and on that date, Defendant clai ms the City Cour

t Judge convicted

him

“ on the original citation in the city court for violating two of the ordinances, 8-302 and 8-304, for-4-

a period of

thirty days between the times of March 16 and April 20 .” (italics in original) Plaintiff also asserts in

its brief that Defendant was convicted for violations occurring between March 16 and April20. The City Co

urt Judge assesse

d fines and costs

totaling $1,617.25. The Judgment entered by the City Court on May 18, 1999, was for the following violations of the three municipal ordinances:
1. § 8-301 for the “fi rst” violation, with

a fine and costs

totaling $55.75;
2. § 8-302 for “first

& 30 d ays subsequent violations,” with a fine and costs totaling $780.75; and
3. § 8-304 for “first & 30 days subsequent violations,” with a fine and costs totaling $780.75



### . Defendant

appealed the

convictions de novo to the Hawkins County Circuit Court. At the de novo hearing, Defe ndant moved by

oral motion to

dismiss the charges. Defendant argued, inter alia , that because the City

Court found him guilty only for violations after March 16, 1999, the prohibitions against double je opardy wou

ld prevent him from being retried on any alleged violations occurring prior to that time. This motion was denied. The Circuit Court concluded that

Defendant
was in violation of all three municipal ordinances for the four day period prior to March 2, 1999, the date on which Defenda

nt w as i ssued the citation. Defendant was fined $25.00 for each violation, for a total of $300 .00, plus court cos ts.
Defendant

appeals the determination of the Circuit Court, claimi ng he was subject to double jeopardy when the Circuit Court Judge found him guilty of violations on days for which he was foundnot guilty by the City Court Judge. Defendant also claims that the doctrine of merger prevents his being convicted for violations of both §§ 8-301 and 8-302.
Discussion
The issue of wheth

er the double

jeopardy clauses of the United States Constitution
or the Tennessee Constitution apply in this case is a question of law. Therefore, the standard of review is de novo upon the record w ithout a presumption of correctness. See Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993).

The double jeo pardy clau

se of the Fifth Ame

ndment to the United

Sta tes Constitution , which is applicable to

the states throug

h the Fourteenth

Amendment, provid

es that no person sh

all “be subject for the same offense to be twice put in j e opardy of li fe or limb. . . . ” Th

e double jeopardy clause of the Tennessee Constitution, Article 1, § 10, provides that “no person shall, for the
sameoffense, be twice put in jeopardy of life or limb.” Stuart v. Department of Safety , 963 S.W.2d 28, 32 (Tenn. 199 8) . There are three fundamental principles that underlie the double jeopardy provisions of both

Constitutions: (1) protection against a second prosecution after an acquittal; (2) protection against a second prosecution after a conviction; and (3) protection against multipl e-5-

punishments for the s ame offense. Id . Although these t hree fundamenta

l principles are t

he same under either Constitution,

it has been held tha

t the Tennessee

Constitution provides a greater measure of protection aga

inst double jeopar

dy than does

the federal Cons

titution in certain

circumstances. Stuart, 963 S.W.2 d at 32 (cit ing State v. Denton , 938 S.W.2d 373, 381-82 (Tenn. 1996)).

In City of Chattanooga v. Mye

rs , 787 S.W.2d 921 (Tenn, 1990), the issue addressed by our Supreme Court was whether a defendant is entitled to a jury trial on appeal to circ uit court from a judgment of a municipal court based on a violation of a city ordinance. In Myers, the Court set forth the long and troubled history of cases discussing the un ique body of

la w with regard to municipal ordinances. Courts have wrestled with how t o deal with

municipal ordinan

ces because they are not easily classified as ci vil or crimin al, as demonstrated by the fact that they have been referr ed to as civil, crimina l, and even quasi-

criminal over the

years. Ac

cording to the Cou

rt in Myers , the “clear” rule to be gleaned from a review of the various ca ses is that, as far as genera l procedural matters and matters of a p peal are concerned, cases involving violations of municipal
o rdinances are civil in nature. Even though these cases are considered “civil” from a pr ocedur a l standpoint, the pr ohibi tion against double jeopardy nevertheless applies. I n Myers , the Court discussed the lead ing Tennessee c ase on the applica

bility of the d

ouble jeopardy

prohibition to violati on s of municipal violations, Metropolitan Government of Nashville & Davidson County v. Miles , 524 S.W.2d 656 (Tenn. 1975), as follows :

In Miles the Court accepted the argument that the constitutional provisions against double jeopardy precluded an app eal to circuit court by the Metropolitan Gove

rnment from a dismi

ssal on the merits by the general s

ession s court of a prosecution for the violation of a municipal ordinance prohibiting interfering with a police officer. Relying on O’Haver

[ v. Montgomery , 120 Tenn. 448, 111 S.W. 449 (1908)] and O’Dell

[ v. City of Knoxville , 214 Tenn. 237, 379 S.W.2d 756 (1963)], . . . the Metro politan Government argued that such an appeal was c onst itutional because the proceeding was civil and not criminal. Ju stice Brock writing for a three judge majority he ld, however, that O’Haver

and O’Dell

had been “at lea st i mpl ied ly” overruled by State v. Jackson , 503 S.W.2d 185 (Tenn. 1973), where it was held that a

juvenile who had been

found not guilty

in a “civil” proceedi ng in juvenile court co uld not be tried ag

ain for the same offense upon an a

ppeal de novo to the circuit court. Stating that the test for double

jeopardy purposes must be “the nature and essence of the proceeding rather than its titl e,” the Court cite

d federal case

law to support its con clus ion that double jeopardy applied. The Court then held
that a proceeding in a municipal court for th e imposition of a fine upon a person for allegedly violating a city ordinance is criminal rather than civi

l in substance, in that, it seeks punishmentto vindicate-6- public justice a nd, therefore, constitutes jeopardy under the double jeopard y clauses of the Tennessee and Federal Constitutions . . .
Id . at 660.

In a concurring and dissenting opinion, Justice Ha rb ison noted the long line of Tennesse

e cases, just discussed, whic h traditionally

held that proceed ings for

the violation of a city ordinance are civil for purposes of appeal and

procedure and opined “that these rules are not affected by the prese

nt hold in g, according to my understanding.” This position was approved by the Court in Metropoli tan Gover nment of Nashville & Davidson County v. Allen , supra , 529 S.W.2d at 706- 707, where in itwas remarked th at the languag

e of the majority

in Miles “may have been overbroad” when it mentioned the “implied” overruling of O’Haver

and O’Dell , and suggested that O’Haver

and O’Dell were “not authority” for the double jeopardy question decided in Miles and that there was no conflict between those cases and Miles in holding that

proceedings involving violation of city ordinances are at least procedurally, civil in nature. Myers , 787 S.W.2d at 926-927. After discussing the above cases and several others, the Myers Court determinedthat a defendant was entitled to a jury trial on an appeal to circuit court bas ed on the viol ation of a city ordinance, provided a jury trial was timely demanded. Id . at 927. Th e Myer s Court then conclud

ed as follows:

In summary, for 130 years proc eedings to recov er fines for the violation of municipal ordinances havebeen considered civil for the purposes of procedure and appeal, although the prin ciples of double jeopardy have recently been

determined to app

ly in such ca

ses. See Miles, supra; cf. United States v. Halper , 490 U.S

. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989)(discussing under what circumstances
a ci vil pen alty constitutes “punis hment” for the pur

poses of double jeopardy analysis). The basis of the cases, accepted in Allen-Briggs , is that an appeal to c

ircuit court of a judgment of a municipal court– even w hen the def

endant is the appe

llant– is an appea

l in a civil action brought by the municipality to recove r a “debt.” Being

such, where requested, the appealing defendant is enti

tled to a jury trial as in any other c

ivil case, despite

the fact that no direct penalty of imprisonment or fine greater than $50 is involved. Myers , 787 S.W.2d at 928. Based on the Mi les a nd Myers opinions by our Supreme Court, we conclude that the prohibitions against double je opardy app

ly to proceedings involving Defendant’s alleged violati

on of these municip

al ordinances.-7- Bo th Plaintiff and Defendant are of the opinion that the City Court Jud ge foun d Defendant

in violation of the mu

nicipal ordinanc

es for the time

period between March 16and April 20, 1999. This conclusion is not supported by our review of the admittedly conf using record. During the trial in Circuit Court, the dates on

which Defendan

t was origin

ally convicted

in City Courtwere at issue. Although the Circuit Court was not provided with a transcript of the March 16 hearing or the events whic h occurred on the

Ma y 18 “ check-back” date in City Court, a tape recording of

these hearings was played to the Circuit Court and transcribed into that Court’s record. Based on this transcription, at the May 18, 1999, hearing, the City Court Judge stated:

I find t hat you are guilty of vi olating the statu

tes of Church Hill in respect to v ehicl e salvage parts and automobile storage without permits. I think that you

have att empted to keep the

property ne

at. You’ve cleaned it up and it’s both – you’ve made those attempts. But I find that you

are guilty of the fines, or guilty of the violation of the statute, and Ifine you a total fine on each of those two citations of $750.00 a nd costs of $30.75. T hat’s $1,561.50. F

rom the last date that we were here until April 20 th , I do not assess any fi nes against you from our last court date to the present . . . . (emphasis added). The City Court

Judge then enter

ed judgment ag

ainst Defendant

as follows: (1) § 8-301 for

the “first” viola

tion, with a fine an

d costs totaling $55.75; (2) § 8-302 for “first & 30 days subsequent violations,” with afine and costs totaling $780.75; and (3) § 8-304 for

“first & 30 days subsequent violations,” with a fine and costs totaling $780.75.
Our conclusion that the City Court Jud ge found these violations to have occurred prior to March 2, 1999, is supported by the above comments by the City Court Judge. On May 18, 1999, the City Court Judge specifically stated that he was not assessing any fines from the “last court date” (March 16) “to the present” (May 18). Regardless of what the City

Court Judge may

have said at the March 16 hearing, Judgment was not entered b

y the City Court Judge until May

18, and it is that Judgment which must be considered on this appeal.

The officer issuing th e Misdemeanor Citation testified that he v ideotaped Defendant’ s property on January 27, 1999, and then ret urn ed “t hir ty” days later, on March 1, 1999 and the property was essentially

in the same

condition. Defen

dant was later fo

und guilty

in the City Court for a “first” violation of § 8-301. We can only assume that this was for January 27, 1999. Defendant
was also found guilty in the City Court of the “first” and thirt

y day s of subsequent vio

lations for both §§ 8-302 and 8-304. We

likewise must assume

these violations were f

or January 27 , plus 30 days , up to and including February 26, 1999. On appeal, the Cir cuit Court Judge fo

und Defendant g

uilty of violating all three ordinances for the four day period prior to March 2, 1999, which wo u ld be-8-

February 26 through March 1, 1999. Having determined that Defendant cannot be placed in jeopardy twice for the same offense, we reverse the Circuit Court’s finding of guilt for the four violations of § 8-301 because the January 27, 1999, violation and conviction wa

s the only alleged violation that could be retried in Circuit Court, and that court did not find Defendant guilty of a violation of § 8- 301 for that date. With regard to the violations of §§ 8-302 and 8-304, we reverse the convictions for February 27, 28 and March 1 , 1999, because th e City Court apparently did not find violations on these three days. We affirm the convictions of §§ 8-302 and 8-304 for Fe bruary 26,

1999, because boththe City

Court and the Circuit Court found violations on this day and, therefore, Defendant was notplaced in double jeopardy as Defendant appealed his conviction for the violations on that date. In summary, Defendant is co rrect that he could not be retried in Circuit Court for violations of ordinances on certain days for which he was tried and not found g uilty in City Court.
Plaintiff argues that since Defendant appealed the decision of the City Court

Judge, all matters tried originally in City Court are then re tried in Circuit Court because the appeal is de
novo
. While this may be true i n most cases appea led to circuit cou

rt de novo , in cases where jeopardy has attached, such as the present case, it would be fair to assume that Defen da nt did not “appeal” to Circuit Court the alleged viol ations for wh ich he was not conv icted in City Co

urt. Because of double jeopardy considerations, the only a lleged violation s that

could be retried

in Circuit Cour twere those upon which Defendant was convicted in City Court. I t is the retrial of thos e convictions that a

re appealed to Ci

rcuit Court de novo . Plaintiff’s argument is unpersuasive.
Because we reverse the convictions for violations of § 8-301, the issue of whether the doctrine of merger prevents simultaneous convictions for violations of §§ 8-301 and 8-302 is rendered moot.
Conclusion

The decision of the Cir

cuit Court is rever

sed in part andaffirmed in part

. This case is rema nded to the Hawkins County Circuit Court for the collection of fines and costs for the municipal code violations as affirmed. Exercising our discretion, costs of this appeal are taxed onehal f to the Cit y of C hur ch H ill and one -hal f to Pat ric k H. Reyn old s, III, and his sur ety.

____________________________________ D. MICHAEL SWINEY, JUDGE