                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


STATE OF TENNESSEE, EX REL          )
ROBERT F. SMITH, COMMR., DEPT.      )
OF HIGHWAYS, FOR AND ON             )
BEHALF OF SAID DEPARTMENT,          )
                                    )
             Petitioner/Appellee,   ) Shelby Chancery No. 74742-3 R.D.
                                    )
VS.                                 ) Appeal No. 02A01-9507-CH-00161
                                    )
C. W. SIMPSON, a/k/a                )
CHARLIE SIMPSON, JR.,               )
                                    )
                                                                   FILED
             Defendant/Appellant.   )
                                                                   August 8, 1996

          APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY Crowson, Jr.
                                                        Cecil
                                                         Appellate C ourt Clerk
                       AT MEMPHIS, TENNESSEE
            THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR


THOMAS E. HANSOM
Memphis, Tennessee
Attorney for Defendant/Appellant



CHARLES W. BURSON
Attorney General & Reporter
MICHAEL E. MOORE
Solicitor General
Nashville, Tennessee

LARRY M. TEAGUE
Senior Counsel for the Attorney General
CAROLYN PIPHUS
Assistant Attorney General
Jackson, Tennessee
Attorneys for Petitioner/Appellee




AFFIRMED


                                                       ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.

      The Court below held defendant in civil contempt for violating a permanent
injunction that prohibited him from obstructing the right-of-way on a state highway.

Defendant has appealed and takes issue with the trial court’s denial of his motion to

dismiss and with the sufficiency of the judgment. We have determined that the record

supports the trial court’s finding of civil contempt and, therefore, we affirm.



       In 1971, the State of Tennessee, ex rel. Robert F. Smith, Commissioner of the

Department of Highways, filed a complaint, seeking to enjoin the defendant from

obstructing the public right of way near his automobile junk yard on Highway 70 in

Arlington, Tennessee. The state alleged that defendant had repeatedly placed automobiles

and piles of gravel on the right-of-way, resulting in a safety hazard to individuals driving

their vehicles on the highway. On April 21, 1971, the chancellor issued a permanent

injunction, which provided:

              [I]t appears to the Court that a preliminary injunction should be
              granted in accordance with the prayer contained in the original
              complaint and in accordance with the opinion rendered orally
              by the Court at the end of the hearing held on April 8, 1971, a
              transcript of which has been filed in this cause and is herein
              incorporated by reference in this decree the same as if copied
              herein verbatim.
                      That and by consent, the injunction may be made
              permanent eliminating the necessity for further hearings on this
              matter.
                      IT IS, THEREFORE, ORDERED, ADJUDGED AND
              DECREED that a permanent injunction issue so as to prohibit
              and restrain the defendant from obstructing or allowing any of
              its agents, servants or employees to obstruct the right-of-way
              of the complainant, the State of Tennessee, said right-of-way
              being described in the original complaint filed in this cause and
              being that property between the screening fence erected on
              both sides of U.S. Highway 70 by the complainant and the
              paved portion of said highway bordering on defendant’s
              property or that of any other person when used by the
              defendant in the conduct of his business, or to place obstacles
              of any kind thereon, whether they be automobiles, operational
              or nonoperational, or otherwise.
                      IT IS FURTHER ORDERED, ADJUDGED AND
              DECREED that the defendant, his agents, servants or
              employees or customers, shall be permitted at all times to
              have reasonable ingress and egress to and from the property
              in question, or for the purpose of stopping for short periods of
              time for said purposes of ingress or egress, or for the
              conducting of his business.



       In 1994, the state filed a petition, alleging that defendant had repeatedly used the

highway right-of-way for storage of junked cars and parts, had caused a potential hazard


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to motorists by loading crushed junk into a hauler parked at the edge of the road, and had

blocked entrances to the junkyard, all in violation of the 1971 injunction. The trial court

issued a writ of scire facias, compelling the defendant to show cause why he should not

be adjudged in contempt of court for violating the court’s previous order. Defendant moved

to dismiss the state’s petition, arguing that the chancellor’s written order in the original

injunction proceeding was incomplete because the chancellor had rendered an oral opinion

setting forth the complete circumstances under which defendant could operate his

business. Neither party was able to locate the transcript of the original hearing. According

to defendant, the transcript from the 1971 hearing would have shown that the chancellor

orally ruled that defendant would be afforded 72 hours to remove any vehicles that were

placed along the right-of-way. The court below denied defendant’s motion.



       At the trial in the present action, the chancellor limited the hearing to two issues: (1)

whether defendant blocked lanes of traffic by loading and unloading vehicles at his

business, and (2) whether defendant placed vehicles in the right-of-way for longer than 72

hours. The state conceded arguendo that the transcript would have allowed defendant 72

hours to move materials placed in the right-of-way. However, the state argued that the

alleged 72-hour provision was irrelevant because defendant had left materials in the right-

of-way for periods longer than 72 hours.



       Joe King of the state department of transportation was the sole witness on behalf

of the state. King testified that he had received complaints from the City of Arlington

regarding defendant’s junkyard. When King went to the junkyard, he saw “crushed cars,

just about everything you can name sitting alongside the state right of way. Some was

encroaching within six inches or even better of the pavement....” King testified that to his

knowledge, defendant had not allowed the same vehicles to be stored on the right-of-way

for more than 72 hours. However, King stated that he had seen junk, such as pipes and

iron, located in the state’s right-of-way for as much as a week at a time. He also testified

that defendant loaded and unloaded trucks from the paved lanes of the highway.




                                               3
      Defendant testified on his own behalf. He denied that he had ever loaded or

unloaded material from the highway and denied that he had left any materials on the right-

of-way for more than 72 hours.



      At the conclusion of the parties’ proof, the chancellor orally ruled as follows:

              The Court finds that the plaintiffs have carried the burden of
              proof by clear and convincing proof, that indeed types--angle
              iron, scrap iron and other junk and debris were on the right of
              way for a period in excess of 72 hours. Even if it is one that is
              replaced by another, it’s a violation in this Court’s
              opinion....Plus the photographs show a dumpster, which Mr.
              King testified and the Court finds creditable, was there for over
              72 hours and always full....The Court finds by clear and
              convincing proof that the State has carried its burden of proof
              with regard to the traffic lanes being tide [sic] up....The Court
              has to evaluate the credibility of Mr. King...I find nothing in Mr.
              King to show that he has done anything but telling it the way he
              honestly recalls it. And when he does not recall it clearly, he
              says so....The Court deems it appropriate to modify its
              injunction under the circumstances so there won’t be any
              misunderstanding....Mr. Simpson,...[y]ou will put zero items
              neither for loading nor unloading, storing, etc. in any way,
              shape, form or fashion....[T]hey’ll [sic] be zero stuff loaded,
              unloaded, stored in any fashion in front of those fences for so
              much as one minute...Yes, you’re entitled to get your fork lift,
              frontloader...across the street back and forth in a safe prompt
              fashion...not stopping once you get off the shoulder on the
              right of way....You may continue to block the entrance with
              vehicles using them have as a temporary gate only over night.

Accordingly, the chancellor held the defendant in contempt of the 1971 injunction.



       Defendant argues on appeal that the judgment below should be reversed. First, he

contends, the trial court erred in denying his motion to dismiss because there was no way

to determine whether defendant was in contempt of the 1971 order due to the fact that the

transcript was missing. Without the missing transcript, he argues, the trial court could not

determine what conduct was permitted or forbidden. We disagree.



       A Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can

be granted admits the truth of the averments contained in the complaint, but asserts that

those facts do not constitute a cause of action. Cornpropst v. Sloan, 528 S.W.2d 188

(Tenn. 1975). A complaint should not be dismissed under this rule “unless it appears

beyond doubt that plaintiff can prove no set of facts in support of his claim that would


                                              4
entitle him to relief.” Fuerst v. Methodist Hosp. South, 566 S.W.2d 847, 848 (Tenn.

1977)(quoting Conley v. Gibson, 355 U.S. 41 (1957)). When reviewing a complaint under

Rule 12.02(6), this court must take all material factual allegations as true, and construe the

complaint liberally in favor of the plaintiff. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn.

App. 1992).



       The state brought the present action alleging that defendant violated the 1971

injunction by obstructing the state’s right of way. The written 1971 order explicitly prohibits

defendant from obstructing the state’s right-of-way. Construing the complaint liberally in

favor of the state, we cannot say that the trial court’s denial of defendant’s motion to

dismiss for failure to state a claim constituted error.



       In addition, we do not find the language of the 1971 order to be so ambiguous or

incomplete as to be unenforceable. “An ambiguous judgment should be construed as a

whole so as, if possible, to give effect to all parts thereof and to effectuate the intent and

purpose of the court.” 49 C.J.S. Judgments §436, p. 862. "It is the spirit and not the mere

letter of the injunction that must be obeyed ... thus, if the phraseology of the writ be

inartificial and obscure, but its spirit and intent be manifest, the party will not be excused

for its violation." Blair v. Nelson, 67 Tenn. 1, 5 (1874). We think the record shows that

defendant knew what was required of him and was on notice that his conduct violated the

court's order.



       Defendant next contends that the evidence adduced at trial does not support the

chancellor’s finding that he violated the 1971 injunction.



       Determining and dealing with contempt lies within the sound discretion of the court.

Robinson v. Air Draulics Engineering Co., 377 S.W.2d 908, 912 (Tenn. 1964). Absent a

showing of an abuse of that discretion, the decision of the trial court will not be reversed

upon appeal. As this case was tried without a jury, this court’s review of the trial court’s

factual findings is de novo upon the record, accompanied by a presumption of correctness.



                                              5
T.R.A.P. 13(d). Unless the evidence preponderates against these findings, or there exists

an error of law, we must affirm. T.R.A.P. 13(d). From our review of the record, we are of

the opinion that the evidence does not preponderate against the chancellor’s factual

findings. Similarly, we find no indication of any abuse of discretion in connection with the

trial court’s decision to enter a contempt order.



       Accordingly, the judgment of the trial court is affirmed. Costs on appeal are taxed

to defendant.




                                                        HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




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