FILED

June 17, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, 

AT JACKSON

_______________________________________________________

)

KING OF CLUBS, INC., ) Shelby County Circuit Court

) No. 92230-6

 Plaintiff/Appellee. )

)

VS. ) C.A. No. 02A01-9801-CV-00024

)

WILLIAM L. GIBBONS, )

DISTRICT ATTORNEY GENERAL, )

)

 Defendant/Appellant. )

)

______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.

Honorable George H. Brown, Jr., Judge

Paul G. Summers, Attorney General & Reporter

Michael E. Moore, Solicitor General

Steven A. Hart, Special Counsel

Attorneys for Defendant/Appellant.

Frierson M. Graves, Jr., Memphis, Tennessee

Michael F. Pleasants, Memphis, Tennessee

Attorneys for Plaintiff/Appellee.

OPINION FILED:

VACATED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)

HIGHERS, J.: (Concurs)
1See T.C.A. § 29-3-105(a) (1980) (providing that, upon presentation of petition alleging

existence of nuisance, trial court shall award temporary writ of injunction enjoining and

restraining further continuance of such nuisance and closing building or place wherein same is

conducted until further court order).

2See T.C.A. § 29-3-101(c) (Supp. 1997) (providing that all furnishings, fixtures,

equipment, moneys, and stock used in or in connection with maintaining or conducting a

nuisance are subject to seizure immediately upon detection by any law enforcement officer and

are subject to forfeiture to state by order of court having jurisdiction upon application by any

officers or persons authorized by statute to bring action for abatement of such nuisance).

3See supra note 2.

Defendant William L. Gibbons, District Attorney General for the Thirtieth Judicial

District of Tennessee, appeals a temporary injunction order entered by the Circuit Court which

enjoined the District Attorney and his agents, servants, and employees from seeking certain

injunctive relief against Plaintiff/Appellee King of Clubs, Inc. We vacate the Circuit Court’s order

based upon our conclusion that the court lacked the authority to enjoin the District Attorney from

pursuing injunctive relief in another court of this state having concurrent jurisdiction of the District

Attorney’s claim.

The chancery, circuit, and criminal courts of this state have concurrent jurisdiction

to hear and decide actions to abate public nuisances. See T.C.A. § 29-3-102 (1980); see alsoPan-ORam Club, Inc. v. State ex rel. Davis, 395 S.W.2d 803, 804-05 (Tenn. 1965); Milwaukee Ins. Co. v.

Gordon, 390 S.W.2d 680, 683 (Tenn. App. 1964). In December 1997, the District Attorney filed

a petition to abate a public nuisance against the Plaintiff and others in the Criminal Court of

Tennessee for the Thirtieth Judicial District at Memphis. As pertinent, the District Attorney’s

petition alleged that the Plaintiff operated a place of business located at 1741 E. Brooks Road in

Memphis. The petition further alleged that the Plaintiff’s place of business had become a public

nuisance because the following activities were taking place on the premises: prostitution; promotion

of prostitution; obscene live performances; unlawful massages; open and notorious lewd conduct;

possession and distribution of illicit controlled substances; and unlawful sale of alcoholic beverages.

The petition sought the following relief: (1) a temporary injunction closing the Plaintiff’s place of

business,1 (2) an order authorizing the seizure of the personal property used in connection with the

operation, maintenance, or conduct of the place of business;2

 (3) an order confirming the forfeiture

of the seized personalty to the state;3 and (4) a permanent injunction closing the Plaintiff’s place of
4See T.C.A. § 29-3-110 (1980) (providing that, if evidence at trial establishes existence of

nuisance, trial court shall enter judgment or decree perpetually enjoining defendant and his

agents or representatives from engaging in, conducting, continuing, or maintaining such nuisance

and perpetually forbidding owner of building from permitting or suffering same to be done in

such building).

5See U.S. Const. amend. I (providing that “Congress shall make no law . . . abridging the

freedom of speech”).

6See Tenn. Const. art. I, § 19 (providing that “[t]he free communication of thoughts and

opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and

print on any subject, being responsible for the abuse of that liberty”).

business and prohibiting the Plaintiff from keeping or maintaining a nuisance in the future.4

 

Instead of defending itself against the petition brought by the District Attorney in the

Criminal Court, the Plaintiff responded by filing this lawsuit in the Circuit Court of Tennessee for

the Thirtieth Judicial District at Memphis. The gravamen of the Plaintiff’s complaint was its

assertion that, by pursuing his claim for injunctive relief in the Criminal Court, the District Attorney

improperly sought to restrain activities that were protected by the First Amendment to the United

States Constitution5 and by the “free expression” provisions of the Tennessee Constitution.6 The

Plaintiff’s complaint sought the following relief:

1. The issuance of a temporaryinjunction or prior thereto

a temporary restraining order enjoining the use of T.C.A. 29-3-105

which permits a temporary injunction closing a place of business as

such injunction relates to the activities of Plaintiff protected by the

First Amendment which is the presentation of entertainment either

topless or completely nude. . . .

2. An order declaring that the temporary injunction

provisions of the nuisance statute are unconstitutional on their face or

as applied to the Plaintiff’s First Amendment activities.

3. An order that the provisions in T.C.A. 29-3-101

permitting a petition for nuisance abatement because of obscene

conduct so as to enjoin any future obscene conduct is a prior restraint

and said provisions of the nuisance statute are unconstitutional on

their face or as applied to the Plaintiff’s First Amendment activities.

4. An order declaring that the lewdness and obscenity

provisions are unconstitutional as overbroad, in violation of

unreasonable search and seizure provisions, in violation of the First

Amendment and in violation of procedural due process . . . .

5. An award of damages for the deprivation of Plaintiff’s

fundamental constitutional and civil rights.

6. An award of attorney’s fees and costs pursuant to 42

U.S.C. 1983. 
After conducting a hearing, the Circuit Court entered a temporary injunction order

which granted in part the Plaintiff’s request for declaratory and injunctive relief. Specifically, the

Circuit Court’s order adjudged and decreed that

the provisions of the nuisance statute T.C.A. 29-3-105 are

unconstitutional as applied to First Amendment activities. The use

of T.C.A. 29-3-105 to close the place of business of the Plaintiff so

as to prevent it from providing entertainment protected by the First

Amendment is an unconstitutional prior restraint. The District

Attorney, William L. Gibbons, his agents, servants and employees are

enjoined from seeking an injunction closing the business of the

Plaintiff so as to prevent it from presenting activities protected by the

First Amendment. 

The District Attorney has appealed this order pursuant to rule 9 of the Tennessee Rules of Appellate

Procedure. 

We conclude that the Circuit Court’s temporary injunction order must be vacated

because it violates the concurrent jurisdiction rule. “It is elementary that when two courts have

concurrent jurisdiction of a particular subject matter, that tribunal which first obtains jurisdiction

retains it.” Casone v. State, 140 S.W.2d 1081, 1083 (Tenn. 1940); accord Kizer v. Bellar, 241

S.W.2d 561, 563 (Tenn. 1951); State v. Hazzard, 743 S.W.2d 938, 940 (Tenn. Crim. App. 1987);

Metropolitan Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 879 (Tenn. App.

1982). The effect of this rule is to divest a court of jurisdiction “when another court with concurrent

subject matter jurisdiction has previously assumed jurisdiction of the case.” State v. Hazard, 743

S.W.2d at 941. In that event, “the court attempting to exercise subsequent jurisdiction is acting

without authority of law, and its judgments or orders are void and of no legal effect.” Id. In

accordance with this rule, the court attempting to exercise subsequent jurisdiction may not prevent

the litigation from proceeding in the first court, either by enjoining the parties from pursuing the

litigation or by enjoining the proceedings themselves. See Metropolitan Dev. & Hous. Agency, 637

S.W.2d at 882; see also Robinson v. Easter, 344 S.W.2d 365, 366 (Tenn. 1961); Hamilton Nat’l

Bank v. Champion, 303 S.W.2d 731, 734 (Tenn. 1957); Aetna Life Ins. Co. v. Bellos, 14 S.W.2d

961, 961 (Tenn. 1929).
Oursupremecourt has provided the following rationale for the concurrent jurisdiction

rule:

“It is a familiar principle that when a court of competent jurisdiction

acquires jurisdiction of the subject matter of a case, its authority

continues,subject only to the appellate authority, until the matter is

finally and completely disposed of, and that no court of co-ordinate

authority is at liberty to interfere with its action.” 14 Am. Jur. p. 435,

section 243. (Italics those of this Court.)

This rule seems to us a reasonable and sound rule to follow.

It rests on comity and necessity in avoiding conflict in the execution

of the judgments and orders of independent courts, and is further

necessary because any other rule would lead to hopeless confusion

and in the end to calamitous results for litigants. There must be some

final decision in so far as courts of concurrent jurisdiction are

concerned. Two or more courts of the same jurisdiction cannot

render a different final conclusion on the same question. When a

litigant is cast in a lawsuit, he has the right of appeal to the proper

appellate tribunal where any error of the lower court can be corrected.

He should not be permitted to run from one court of equal jurisdiction

to another of the same jurisdiction and there relitigate the same

matter. Mr. Justice Caruthers, in Greenlaw v. Kernahan, 36 Tenn.

371, 380 [(1857)], has well stated the rule and the reasons therefore,

thus: “Every consideration of public policy and individual security

requires, when a court of record acts upon and settles the rights of

men, in cases when there is jurisdiction of the subject and person, that

all may repose in safety and quiet upon such rights.

A court of general jurisdiction is presumed to act correctly and

upon sufficient grounds in all the intermediate steps as well as final

determination of suits. But if the contrary should appear of record (in

the opinion of any other court before which the record is proposed to

be used), it would not affect the validity of the judgment or decree if

the defect consisted only of irregularities and errors. Such defects

may be grounds of reversal on appeal or writ of error in the same suit,

but do not render the decree void, or the rights derived under it

unavailing.

A court before which the records of another, having

jurisdiction, are used, can not review the proceedings to spy out

irregularities that may have intervened, or erroneous orders that may

have been made, or wrong conclusions arrived at. This is the

province of a court of revision, and no other can notice their

existence. As to all rights and interests arising under such judgments

or decrees, they are as good and effectual as if such errors did not

exist. If this were not so, every court in which it might become

necessary to use or rely upon a record from another would become a

court of errors, and there would be no certainty in titles or rights

grounded on this, the highest of all assurances.”

Haley v. Doochin, 208 S.W.2d 756, 757 (Tenn. 1948).

We conclude that the foregoing principles precluded the Circuit Court from entering
an order which purported to enjoin the District Attorney from proceeding against the Plaintiff in the

abatement action filed in the Criminal Court. Both the Circuit Court and the Criminal Court had

concurrent jurisdiction of the District Attorney’s claim to abate a public nuisance. See T.C.A.

§ 29-3-102 (1980). Inasmuch as the Criminal Court first acquired jurisdiction of the District

Attorney’s claim, the Circuit Court lacked the authority to enter an order or decree which in any way

interfered with the proceedings in the Criminal Court.

We recognize that the trial court’s temporary injunction order could be interpreted

as applying only to the District Attorney’s efforts to enjoin activities protected by the First

Amendment. If the temporary injunction order is interpreted in this manner, the order arguably does

not enjoin the District Attorney from pursuing his public nuisance claim in the Criminal Court

because his claim is based in part upon activities which are not protected by the First Amendment.

We believe, however, that the Circuit Court’s temporary injunction order was improper to the extent

that it purported to enjoin the District Attorney from proceeding with any portion of his claim in the

Criminal Court. Inasmuch as the Criminal Court first acquired jurisdiction of the action to abate a

public nuisance, the Criminal Court is now the only trial court of this state with jurisdiction to

determine the constitutionality of the abatement proceedings against the Plaintiff.

On appeal, the Plaintiff concedes that all of its constitutional challenges to the public

nuisance statute may be raised as defenses in the pending Criminal Court action and, thus, that the

Criminal Court has jurisdiction to determine the constitutional questions raised by the Plaintiff.

Nevertheless, in urging this court to affirm the Circuit Court’s order enjoining the District Attorney

from seeking injunctive relief, the Plaintiff contends that it has a right to bring this action in the

Circuit Court because the Criminal Court lacks jurisdiction to hear a civil action for damages and

violation of civil rights. 

We agree that the concurrent jurisdiction granted by the public nuisance statute gives

the Criminal Court the authority to decide only the abatement action. See Pan-O-Ram Club, Inc. v.

State ex rel. Davis, 395 S.W.2d 803, 804-05 (Tenn. 1965). We also agree that the Plaintiff has the

right to bring a section 1983 claim in the Circuit Court. See Poling v. Goins, 713 S.W.2d 305, 306-

07 (Tenn. 1986). We do not agree, however, that this right somehow confers upon the Circuit Court
the power or authority to enjoin the abatement proceedings which remain pending in the Criminal

Court.

The trial court’s temporary injunction order is vacated, and this cause is remanded

for further proceedings consistent with this opinion. Costs of this appeal are taxed to the Plaintiff,

for which execution may issue if necessary.

____________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

HIGHERS, J. (Concurs)