### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON April 30, 2001 Sessi

on
JEFFREY BUTLER v. CITY OF JAC KSON, STATE OF TENNESSEE
A Direct Appeal from the Circuit Court for Madison County No. 97-727 The Honorable Donald Allen, Judge

No. W2000-02154-COA-R3-CV - Filed May 24, 2001

This case is before t

he court for the s

econd time. Defe

ndant w as tried in city court for violati on of five separate c ity ordinanc

es and was fined a

total of $250.00 fo

r the five violatio

ns. After a de novo trial in ci rcuit court, defenda nt was found guilt

y of violatin

g the five sepa

rate ordinances and was fined a total of $250.00. This Court reversed the conviction on two of the five ordinances and affirmed the convictions on thre

e of the ordinanc

es. The case was remanded to the trial court to determine

the amount of fine

for the three vio

lations. On remand

, the tria l cour t assessedfines totaling $75 0.00, being $250. 00 for the violatio n of each of the th

ree ordinance

s. Defendant

has appealed. We reverse the trial court and set defendant’s fine at $250.00 for violation of the three city

ordinances.

Tenn.R.App.P. 3; Appe al as of Right; Judgme

nt of the Circuit C

ourt Modified and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and J OE G. R ILEY , J., joined. Jeffrey Butler,

Jackson, Pro Se R. Scott Pietrowski, Jackson, For Appellee, City of Jackson

OPINION

The factual and procedural history are set out in our former opinion, City of Jackson v. Butler , 10 S.W.3d 250 (Tenn. Ct. App. 1999), which we quote:

After receiving compla

ints about the prem

ises a t 12 6 W ilk inson in Jackson, Tennessee, the Health and Sanitation Department of the

City of Jackson (“City” or “Appellee”) instituted an investigation at that address in July of 1997.-2- On July 16, 1997, pursuant to Jackson City Code section 13- 105, a letter issued from Code Enforcement Officer Rickey

Brown to the Appellant, notifying him that he was in violation of t he Official Code of the City of Jackson section s 1 3-103, 13-104, 13-105, and 17-105. When Butler failed to take any action, two citations were is sued

. The first citation

, issued July 31, 1997 , charged Butler with violat in g City Code 13-202. The second citation, issued August 1, 1997, charged Butler w

ith violating City

Code sections 13-103, 13- 104, 13-105, and 17-105.

Code Enforcement

Officer Rickey Brown

based the citations
on his observat ion of weeds, vine s, stacks of wood, m

etal parts, automotive parts, motors, au tomobiles, scatter ed papers and de

bris locatedin the front and back yards of Butler’s residenc e. Brown returned in August

of 1997 and on September 15, 1997, and found the property in the same condition. Accompanying him on September 15
was the Jackson-Madison Cou nty Environmental Program Director and Superintendent o

f the C ity of Jackson Health and Sanitation Department,

Br e nt Lewis. Lewis obs

erved the prope

rty in the same condit ion and a videotape and pho tographs were ma

de at that time and later submitted into evidence. Officer Jerry West observed th e sameviolations, and add

itionally junk cars , and caused the citations for the cars to issue.

On August 18, 1997, Butler respondedto the summons at the City of Jackson City Court. Thereafter a trial ensued, r e sulting in a judgmentagainst Butler in the amount of $250.00. Butler appealed the matter to circuit court.

On May 8, 1998, the circuit court conducted a de nov o hearing. The trial court

found Butler to be in violation of City Code sections 13-103, 13-104, 13-105, 13-202 and 17-105 and imposed a fine of $250.00. The trial court found that there had been some clean up of the yard since thecitations were issued. Accordingly, the trial
cou rt ord ered the city to send Butler a new letter informing him of
w hat must be done to bring the property up to code. The trial cour t further held that Butler would then have fifteen (15) days to comply. If Butler did not comply, the City would be allowed to clean up the yardat the ex p ense of Butler. It is from that decision that Butler appeals to this Court.

10 S.W.3d at 252.-3-

This Court affirmed the trial court regarding Butler’s violation of

city code sections 13-103, 13-202, and 17-105, but reversed the trial court with regard to sections 13-103 and 13-105. The c ase was rem anded to the trial court for the sole purpose of determining the amount of the fine to b e assessedagainst Butler for the violation of three city

code sections. I

n remanding the

case thisCourt stated in pertinen

t part:

In summary, we

find that the trial

court did not err in finding Butler in violation of City Code sections 13-103, 13-202, and 17-105. However, the tria

l court erred in f

inding Butler in

violation of City Code s e ctions 13-104 and 1 3-105. Under the general pena

lty provision, the tria

l cou rt may impose a fine of no more than five hundreddollars ($500.00) for each violation. While the fine of $250.00, imposed by the trial court for the five code violati

ons, is still within the allowable range, this Court cannot know if the trial court would have imp

osed the same fine for three code violati

ons. Therefore, we shall remand this case back to the trial court for a new determination.
Id. at 258 (emphasis added).

On remand, the trial court specifically limited the trial proceedings to a consider ation of the fine imposed. At the conclusion of the hearing, the trial court assessed a fine of $250.00 for each of the code violations, for a total of $750.00. Butler has appealed.

The issue for review is whether the trial courterred in assessing fines in excess of the previously a

ssessed fine. This

is a question of law,

and our review is de novo on the record of the proceedings in the trial court, but there is no presump tion of cor rectness as to the tria l court’ rul ing. See Billington v. Crowder , 553 S.W.2d 590, 595 (Tenn. Ct. App. 1977). Although we have a limited issue for review, Mr. Butler persisted in arguing the correctnes s of his conviction for violating the Jackson code sections involved. However, this Court’s decision and judgment in

affirming the conviction in the previous appeal has become final and has become the law of the case. Under the law of the case doctrine, the appellate court’s decision on an issue of law becomes binding

precedent to

be followed in late

r trials and appe

als of the same

case involving the same issues and facts. La dd v. Honda Motor Co. , Ltd ., 939 S.W.2d 83, 90 (Tenn. Ct. App. 1996). Butler asserts that in the first circuit court trial, the trial jud

ge directed the

city to send h

im
a foll ow-up letter to g

ive him an opportuni

ty to comply

with the code sec

tions, and that the c

ity ’ s failure to send the letter resulted in there being no violations of the city code and therefore the fines
are not in order. We cannot agree with this assertion. The trial court’s ins tructions c oncerning a follow-up letter could be an effort by the trial court to assist Butler in avoiding future violations,

but, in any even

t, it has no bearing

on the established

violations involved

in this appeal.-4-

The record reveals that in setting the fine, the circuit court referred to events that had transpireda fter Bu tler was origina lly cited in July

and August of 199

7, and after the t

rial on both citations in May of 1998. We quote from the record:

In this particular matter, I’ve reviewed the file. I’ve r ead over everything

in the file, and we’re back her e to day t o determine the appropriate

fines w ith respect to these three violations. You know, Judge Murchison gave Mr. Butler an opportunity to clean this up within a matter of 15 days, and apparently he didn’t do that. The case went up on appeal. He’s now come back and he’s c leaned it up, which is helpful to h

im.

Of course, the Court could impose a fine of up to $500.00 on each of these three violations. I’m not going to impose amaximum fine. However, I a

m going to impose

a fin e of $250.00 on each of these thre e v iolations. So, on violation of City Code 13-103, a $250.0 0 fi ne is imposed. On violation of 13-202 Code Section, I impose a fine of $250.00. And a violation of Code Section 17-105, I impose a fine of $250.00 . I feel like t hose are approp

riate fines. You know, Judge Murchison, who I know, is very understanding and very fair, gave Mr.

Butler an opport

unity to try

to clean this up with

in 15 days. He

didn’t do it. He didn ’t clean it up until June of this year. So, becaus e of that, then I feel like a $250.00 fine is appropriate on eachviolation. So, there will be a total of $750.00 in fines plus Court costs. Cases involving violations of city ordinances are not criminal prosecutions. Metropolitan Government

v. Allen , 529 S .W.2 d 699 ( Tenn. 1975) . In Briggs v. City of Union City , 531 S.W.2d 106 (Tenn. 1975), the Supreme Court said:

In Metropolitan Government v. Allen , 529 S.W.2 d 699 (Tenn. 1975), we reviewed the major former decisions of this Court and held that cases in

volving violations

o f cit y ordinances are not criminal p rosecutions; that t hey are c ivil in nature havin

g as their object the vin dic ati on o f do mes tic regu lat ion s; t hat the y are in th e nature of actions for debt; . . . .
Id . at 107.

In City of

Chattanooga v. Myers , 787 S.W.2d 921 (Tenn. 1990), the Court he ld that a defendant is entitled to a jury trial on appeal to the circuit court from a judgment of a municipal court basedon violations of city ordinances. The Court reviewed a number of

cases, going back to 1858, concerning t he status o f city ordinanc e violatio ns, stati ng:-5- In sum mar y, for 130 years proceedings to recover fines for the violation of municipal ordinances have been considered civil

for the purposes of procedure and appeal, although the principles of double jeopardy have recently

been determined

to apply in such cases. See Miles, supra; cf. United States v. Halper , [490 U.S. 433], 109 S.Ct. 1892, 104 L.Ed.2d

487 (1989) (discussing under what circumstances
a civil penalty

constitutes “punis

hment” for the pur

pose s of do uble jeopardy analysis).
Id. at 928 (emphasis in original).

In City of Church Hill v. Reynolds, No. E2000-01376 -COA-R3-CV, 2001 WL 24258 3 (March 12, 2 001), the E astern sect ion of this Court, con sidering a case involving violations of the Church Hill municipal code, held that the de fendant wa s placed in double jeopardy b

y the circu

it court for violation of municipal ordinances on days for which the city court made no finding o

f guilt. In discussing trea

tment of double jeo

pardy by both the United St

ates and th e Tennessee Constitutions the Reynolds Court stated:

There are three funda

mental principles

that underlie the

double jeopardy provisions of both Constitutions: (1) pr ot ection against a secondprosecution after an acquittal; (2) protection against a second prosecution after

a co nviction; and (3) p

rotection agai

nst multiple punishments

for the same offense. Id. Although these thr ee fundamental principles are the same under either Constitution, it has been held that the Tennessee Constitution provides a greater measure of pro tection against double jeopardy than does the federal Constitution in certai n ci rcumstances. Stuart , 964 S.W.2d at 321 (citing State v. Denton, 938 S.W.2d 373, 381-82 (Tenn. 1996)).

* * * According to the Court in Myers, the “clear” rule to be gleaned from
a review of the va

rious cases is tha

t, as far as gen

eral p rocedura l matters and matters of ap peal are c oncerned, cases involving violations of municipal ordin ances are civil

in nature. Even though these cases are considered “civil” from a procedural stand poin t, the prohibition against double jeopardy nevertheless applies.
Id. at * 3 - *4.

In the instantcase, this Court reversed the trial court’s judgment finding Butler in violation of two code sections while affirmingthe trial court’s judgment finding Butler in violation of three code sections. Since the trial court’s fine for five violations was set at $250.00, this Court remanded the case afte r stating:-6- While the fine of $250.00, imposed by the trial court for the five code violations, is still within the allowable range, this Court cannot know if the trial court

woul d have imposed the same fine for three code violations. Therefore, we shall rema

nd this c ase back to the trial court for a new determination.

10 S.W.3d at 257.

Obv iou sly, a violation of

five code sections would carry a heavier fine than the violation of three code sections, and it is implicit in this Court’s remand that the trial court determined that the amount of the fines for th

ree code sectio

n violations was with

in the $250.00 range previously set by the trial court. The remand is clearly for a determination of the fines f or the affirmed v

iolations. However, it appears from the above-quoted record that the trial court assessed the enhanced fine s because the court determined that Butler delayed cle ani ng up the pro pert y beyo nd t he fi fte en d ays allowed by the judgment. This appears to exceed the parameters of the remand.

In State v. Irick , 906 S.W.2d 440 (Tenn. 1995), our Supreme Court stated:

Gen eral ly, however, a trial court should interpret an o rd er remanding a case as implicit ly requirin

g a prompt hear

in g in accordance

with the remand. Mo reover, “[i]t is a con trolling principle that in ferior courts must abide the orders, decrees and prece d ents of higher cour ts. The slightest d

eviation from this r

igid rulewould disrupt and destroy the sanctity of the j udi cial process. There would be no finality or stability i

n the law and the court system would be chaotic in its

operation and uns

table and inconsis

tent in its decisions.” Barger v. Brock , 535 S.W.2d 337, 341 (Tenn. 1976).
Id. at 443.

A ccor din gly, we find that the trial court erred in assessing the enhanced fine und er th e circumstances of

this case. Although the trial court initially assessed a fine of $250.00 for a violation of five code sections, we find that a $250.00 fine for a violation of the thre e code violations, violations affirmed by

this Court, is reasonable. Therefore, we modify the judgment of the trial court and as sess a total fine of $250.00 for the violation of said code sections. Costs of the appeal are assessedagainst the appellant, Jeffrey Butler, and his surety. The case is remanded for any further pro ceed ings tha t ma y be n eces sar y.

__________________________________________ W. FRANK CRA

WFORD, PRESIDING JUDGE , W.S

.