# FILED
June 17, 1999 Cecil Crowson, Jr. Appellate Cou rt 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/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable George H. Brown, Jr., Judge

Paul G. Summers , Attorney General & Reporter Michael E. Moore , Solicitor General Steven A. Hart , Special Counsel Attorneys f

or Defendant/Ap

pellant. Frierson M. Graves, Jr. , Memphis, Tennessee Michael F. Pleasants , Memphis, Tennessee Attorneys for Plaintiff/Appellee.

OPINION FIL

ED: VACATED AND REMA NDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)1 See 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 fu

rther continuanc

e of such nuisanc

e and closing bui

lding or place w

herein same is conducted until further court order).

2 See T.C.A. § 29-3-101(

c) (Supp. 1997) (p

roviding that all

furnishings, fixtu

res, equipment , moneys, and s tock used i n or in conn ection wit h maintain ing or condu cting 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 abateme nt of such nuisance).
3 See supra note 2. Defendant

William L. Gibbon

s, District Attorney General for the Thirtieth Judicial District of Tennessee, app eals a temporary injunction order entered by the Circuit Court which enjoinedthe District Attorney and hi s agents, serva nts, and employ

ees from seeking

certain injunctive relief agains

t Plaintiff/Appelle

e King of Clubs, I

nc. We vacate

the Circuit Court’s order basedupon our conclusion that the court lacked the authority to enjoin the Distri ct A ttorney 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 actio

ns to abate public nuisances. See T.C.A. § 29-3-102 ( 1980); see also Pan-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 (T enn. App. 1964). I

n December 1997 , the Distric t Attorney filed
a petition to abate a pu blic nuisa nce aga inst the Plaintiff and others in the Criminal Court of Tennessee for the Thirtieth Jud icial Distr

ict a t 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 becom e a public nuisance because the following activities were taking place on the premises: prostitution; promotion of prostitution; obsc

ene live perfor

mances; unlawful massag es; open and notorious

lewd conduct; possession and distribution of illicit controlled substances; and unlawful sale of alcoholic bever

ages. The petition sought the following relief: (1) a temporary injunction closing the Plaintiff’s place of business, 1 (2) an order au thorizing the seizur

e of the persona

l property used in connectio

n 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 of4 See T.C.A. § 29-3-110 (1980) (providing that, if evidence at trial establishes existence of

nuisance, trial c

ourt shall enter ju

dgment or decr

ee perpetually

enjoining defe

ndant and his agents or representatives from engaging in, conducting , continuing, or maintaining such nuisance and perpetually

forbidding owne

r of building fro

m permitting or suf

fering same to b

e done in such building).

5 See U.S. Const. amend. I (providing that “Congress shall make no law . . . abridging the freedom of speech”).

6 See 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 its

elf 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 compla int was its assertion that, by pursuing his claim for injunctive relief in the Criminal Court, the DistrictAttorney impr operly

sought to restrain activities that were protected by the First Amendment to the Unite d States Constitution 5 and by the “fre e expres sion” provisions of the Tennessee Constitution. 6 The Plaintiff’s complaint sought the following relief:

1. The issuance of a tempor ary inju nction or prior the reto a temporary

rest raini ng order enjoining the use of T.C.A. 29-3-105 which permits a

temporary injunction closing a place of business as suc h injunction relates to the activities of Plaintiff protected by the First Amendment which is the presentation of e nte rtainment either topless or completely nude. . . . 2. An order declari n g that the temporary injunction provisions of the nuisance statute are unconstitutional on their face or as applied to the Pla

intiff’s First Ame

ndment activities. 3. An order that the pr ovisions in T.C.A. 29-3-101 perm itting a petition for nuisance abatement because of obscene conduct so as to enjoin

any future obscene conduct is a prior restraint andsaid provisions of the nuisance statute are unconstitutional on their face or as applied

to the Plaintiff’s Fi

rst Amendment act

ivities. 4. An order d eclar ing that the lewd ness and obscenit

y 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 cons

titutional 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 temp orary injunction order which granted i

n 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 Amendm ent ac tivities. The use of T .C.A. 29-3-105 to close the place of business of the Plaintiff s o as to prevent it from p

roviding entert

ainment protecte

d by the Fir

st Amendment

is an un constit

utional prior restraint. The District Att orn ey, William L. Gibbon s, his agents, se

rvants and emplo

y ees are en joined f rom 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 Tenn

essee Rules of App

ellate Procedure.

We conclude that the Circuit Court’s temporary injunction order must be vacated because it violates the concurre nt jurisdic tion rule. “It is elementary that when two courts have concurrent

jurisdiction of a particular subject matter, that tribunal which first o btains jurisdiction retains it.” Casone v. State , 140 S.W.2d 1081, 1083 (T enn. 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 ru le 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 t hat event, “the court attempting to exercise subsequent jurisdiction is acting wi thou tauthority of law, and its judgments or orders are void and of no leg al effect.” Id . In accordance

with this rule, the court attempti ng to exercise subsequent jurisdiction may not prevent the litigation from proceeding in the first court, either by enjoining the pa rties from pursui n g 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 (T enn. 1961); Hamilton Nat’l Bank v. Champion , 303 S.W.2d 731, 734 (T enn. 1957); Aetna Life Ins. Co. v. Bellos , 14 S.W.2d 961, 961 (Tenn. 1929).Our supreme court has provided the foll owing rationale for the concurrent jurisdiction

rule:

“It is a familiar principle that when a court of competent jurisdiction acq uires jurisdiction of the subject matter of

a case, its author

ity continues, subject only tothe appellate authorit y , until the matter is finally and completely disposed of, and that no court o f 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 reas

onable and sound r

ule to follow. It rests on comity and

necessity in avoiding conflict in the execution of the judgments and ord ers of independent courts, and is further necessary be cause a ny other rule would lead to hopeless confusion andin the end to calamitous r esults for litiga

nts. There must be s

ome final decision in so far as courts of concurrent juri sdic tion are concerned. Two or more courts of the same j urisdicti on cannot render a different final conc lusion on the same question. When a litigant is cast in a lawsuit, he has the right of app eal to the proper appellate tribunal where any error of the lower court can be corr ected. He should not be permitted to run from one court of equal jurisdiction to another of the same jurisdiction and there rel itigate the same matter. Mr. Justice Caruthe rs, in Greenl

aw v. Kernahan , 36 Tenn. 371, 380 [(1857)],

has well stated the rule and the reasons therefore, thus: “Every consideration of public policy a nd i ndividual securit

y requires,when a court of reco rd acts upo n and settles the rights of men, in cases when there is jurisdiction of the subject and person, that all may rep

ose in safety

and quiet upon such

rights. A court of gen er al jurisdiction is presumed to act correctly and upon sufficient grounds in all the intermed iate steps as well

as final determination of

suits. But if the contra

ry should ap

pear of record

(in the opinion of any other court before which the record is proposed to be used), it would not affect thevalidity of the judgment or decree if the defect consisted only of irregularities and er ror s. Such defects may be grounds of re

versal on appea

l or writ of error in

the same suit, butdo not render the

decree void, or

the rights deriv

ed under it unavailin g. A court before which the rec ords of another, having jurisdiction, are use d, can not review the proceedings to spy out irregularities that may have intervened, or erroneous ordersthat may have been made, or wrong conclusions arrived at. This is the provin ce of a court of rev ision, and no other

can notice their existence. As to all

rights and inter

ests arising unde

r such judgments or decrees , they are a s good and effectual as if such errors did not exist. I f this were not so, e very cour t in which it might be

come necessary to use or rely upon a

record from another would become a court of errors, and there woul d 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 foregoingprinciples precluded the Circuit Court from enteringan order which purp orted to enjoin the District Attorney from proceeding against the Plaintiff in the
a batement

action filed in the Criminal Court. Both the Circuit Court and the Criminal Cou rt ha d concurrent

jurisdiction of the

Distric t 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’sclaim, the Circuit Court lacked the authority to enter an order or decree which in any way interfered with

the proceeding

s in the Criminal Cour

t.

We recognize that the trial court’s tempo rary in junction order could be interpreted
as applying only to the District Attorney’s eff orts t o enjoin activities

protected by

the First Amendment. If

the temporary injunction order is interpreted in this manner, the order arguably does notenjoin the Distric

t Attorney f

rom pursuing his pu

blic nuisance cla

im in the Cr

iminal Court because his claim is based in part upon activities which are not protected by the First Amendme

nt. We believe, however, that the Circuit Court’s temporary injunction order was improper to the extent that it purported to enj oin the District Atto rney from p

roceeding with

any portion

of his claim in the Criminal Court. Inasmuch as the Criminal Court first acquir

ed jurisdiction of t

he action to abate

a public nuisance, the Cri

minal Co u rt is now the only trial court of this

state with jurisdic

tion to determine the constitutionality of the abatement proceedings aga inst the Plaintiff.

On appeal, the Plaintiff

concedes that all of its const itutional challeng

es 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 d etermine th e constitutional questions raised by the Plaintiff. Nevertheless,

in urging this court to affirm the Circuit Court’s order enjoining the District Attorney from seeking injuncti

ve relief, the Pla

intiff contends tha

t it h as a right to bring this action in the Circuit Courtbecause

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 g ives the Criminal Courtthe authority to decide only the abatement a ction. 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 sectio

n 1983 claim

in the Circuit Court. See Poling v. Goins , 713 S.W.2d 305, 306- 07 (Tenn. 1986). We d

o not agree, how

ever, that this

right somehow confers upon the Circuit Courtthe 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 whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)