                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 September 21, 2004 Session

                  CLINTON BOOKS, INC. v. CITY OF MEMPHIS

                 A Direct Appeal from the Circuit Court for Shelby County
                No. CT-007680-01    The Honorable Robert A. Lanier, Judge



                   No. W2003-01300-COA-R3-CV - Filed November 3, 2004


        At issue in this appeal is the legislature’s authority, under the Tennessee Constitution, to
impose mandatory closing times on adult-oriented businesses in order to combat the secondary
effects associated with those establishments. Appellants, Clinton Books, Inc. (“Clinton Books”) and
Fantasy Warehouse, Inc. (“Fantasy Warehouse”), challenge the constitutionality of T.C.A. § 7-51-
1402 through 7-51-1406 (“the Act”), arguing that the Act violates several rights guaranteed by the
Tennessee Constitution, among them the rights of religious and expressive freedom, due process,
and equal protection of the law. Appellants further contend that the trial court erred in ruling on the
merits of their claims during the hearing on a motion for temporary injunction. We affirm in part,
reverse in part, and remand for further proceedings.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                       Reversed in part, Vacated and Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Michael F. Pleasants, David Andrew E. Lumb, and Frierson M. Graves, Jr., Memphis, For Appellant,
Clinton Books, Inc.

Edward M. Bearman, Memphis, and Bradley J. Shafer, Lansing, Michigan, For Intervening
Plaintiff/Appellant, Fantasy Warehouse, Inc.

Steven D. Townsdin, Memphis, For Defendant/Appellee, City of Memphis

Paul G. Summers, Attorney General and Reporter, State of Tennessee; Michael E. Moore, Solicitor
General; Steven A. Hart, Special Counsel, For Intervenor Defendant/Appellee, Tennessee Attorney
General Summers
                                            OPINION

                                 I. FACTUAL BACKGROUND

         In 1995, the Tennessee Legislature enacted Chapter 421 of the Tennessee Public Acts, which
was codified as T.C.A. § 7-51-1401 through 7-51-1406 (1998) (“the Act”). The Act places certain
restrictions on the operation of adult-oriented establishments. The Act defines “adult-oriented
establishment,” in relevant part, as follows:

               (4) "Adult-oriented establishment" means any commercial
               establishment, business or service, or portion thereof, which offers,
               as its principal or predominant stock or trade, sexually-oriented
               material, devices, or paraphernalia or specified sexual activities, or
               any combination or form thereof, whether printed, filmed, recorded
               or live and which restricts or purports to restrict admission to adults
               or to any class of adults. "Adult-oriented establishment" includes, but
               is not limited to:

                      (A) "Adult book stores," which means any
                      corporation, partnership or business of any kind which
                      has as its principal or predominant stock or trade,
                      books, magazines or other periodicals and which
                      offers, sells, provides or rents for a fee:

                              (i) Any sexually-oriented material
                              which is available for viewing by
                              patrons on the premises by means of
                              the operation of movie machines or
                              slide projectors; or

                              (ii) Any sexually-oriented material
                              which has a substantial portion of its
                              contents devoted to the pictorial
                              depiction of sadism, masochism or
                              bestiality; or

                              (iii) Any sexually-oriented material
                              which has as its principal theme the
                              depiction of sexual activity by, or
                              lascivious exhibition of, the uncovered
                              genitals, pubic region or buttocks of
                              children who are or appear to be under
                              eighteen (18) years of age ....


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T.C.A. § 7-51-1401. The specific provision of the Act at issue in this case, T.C.A. § 7-51-1402,
requires that such adult-oriented establishments be closed during specified times:

               (a) No adult-oriented establishment shall open to do business before
               eight o'clock a.m. (8:00 a.m.), Monday through Saturday; and no such
               establishment shall remain open after twelve o'clock (12:00)
               midnight, Monday through Saturday. No adult-oriented establishment
               shall be open for business on any Sunday or a legal holiday as
               designated in § 15-1-101.

               (b) A local ordinance, resolution or private act may establish opening
               hours for adult-oriented establishments which are later than eight
               o'clock a.m. (8:00 a.m.) and closing hours which are earlier than
               twelve o'clock (12:00) midnight, but in no event may such
               ordinances, resolutions or private acts extend the opening hours to
               earlier than eight o'clock a.m. (8:00 a.m.) or the closing hours to later
               than twelve o'clock (12:00) midnight.

It is these mandatory closing times that are at issue in this appeal.

        Appellants, Clinton Books, Inc. (“Clinton Books”) and Fantasy Warehouse, Inc. (“Fantasy
Warehouse”), operate adult-oriented businesses located in Memphis that predominantly trade in
sexually-oriented books, magazines and videos. In August of 2001, the Memphis Police Department
cited employees of both Clinton Books and Fantasy Warehouse for violation of T.C.A. § 7-51-1402.

        After the citations were issued, the appellants complied by closing their stores during the
required times. There is evidence in the record that profits for both bookstores declined significantly
due to the mandatory closings required by the statute.

                                  II. PROCEDURAL HISTORY

        On December 27, 2001, in the Shelby County Circuit Court, Clinton Books filed a complaint
for declaratory judgment which also requested a temporary and permanent injunction challenging
the constitutionality of the Act on the grounds that it violated various provisions of the Tennessee
Constitution, including equal protection, freedom of speech, and due process. On December 28,
2001, Clinton Books filed a motion for temporary injunction. Clinton Books sent copies of both the
complaint and the motion to the Attorney General.

       On January 22, 2002, Fantasy Warehouse filed a Motion to Intervene. On February 22, 2002,
an Order was entered granting the motion to intervene.




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        On February 13, 2002, the Attorney General for the State of Tennessee filed a Motion to
Intervene to defend the constitutionality of the Act. The original defendant was the City of Memphis,
whose police officers had issued citations in August 2001 for violation of the Act.
        The Motion for temporary injunction was set for hearing on May 16, 2002. The Attorney
General filed three volumes of exhibits consisting of legislative history, various studies, and
miscellaneous letters and statements. The court heard testimony from various witnesses. Another
hearing was held on March 13, 2003. No testimony was heard at that hearing, only argument of
counsel. On April 2, 2003, the court entered an order denying the injunction and dismissed the case
for lack of jurisdiction and upheld the validity of the statute. Appellants filed their notice of appeal
on April 29, 2003. Clinton Books filed a motion to alter or amend the final judgment on April 24,
2003. Fantasy Warehouse filed a motion to alter or amend the final judgment on April 25, 2003. The
court denied these motions in an order entered on August 6, 2003. After the trial court denied their
motions to alter or amend, Clinton Books filed a supplemental notice of appeal on September 3,
2003, and Fantasy Warehouse filed a supplemental notice of appeal on September 4, 2003.

                                    III. ISSUES PRESENTED

       Appellants present numerous issues for review. We perceive the issues to be as follows:

               1.      Whether the Circuit Courts of this State have jurisdiction to
                       enjoin the enforcement of an unconstitutional statute, the
                       violation of which subjects the offender to criminal
                       penalties, and whether the doctrine of former suit pending
                       bars any challenge to such unconstitutional statute.

               2.      Whether the Circuit Court erred in dismissing the causes of
                       action filed by the Plaintiff and the Intervening Plaintiff,
                       which contained a number of constitutional challenges and
                       other claims for relief but which were not placed in issue in
                       the motions for temporary injunction; the rulings upon which
                       led to the sua sponte dismissal of all claims.

                                  IV. STANDARD OF REVIEW

        Our standard of review in this non-jury case is de novo upon the record of the proceedings
below and there is no presumption of correctness with respect to the trial court's conclusions of law.
Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.1996) and Tenn. R.App. P. 13(d). The trial
court's factual findings are, however, presumed to be correct and we must affirm such findings
absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d
87 (Tenn.1993).

                                           V. ANALYSIS



                                                  -4-
        Appellants contend that the Act infringes upon numerous guarantees of the Tennessee
Constitution, including freedom of religion, freedom of expression, due process and equal protection.
Appellee argues that the Act falls within the authority of the state to regulate secondary effects of
adult-oriented establishments. The briefs filed by Appellants and Appellees in this appeal offer
extensive argument as to whether the Act offends the Tennessee Constitution. However, we need
not resolve the question of the statute’s constitutionality at this time. We need only address two
questions: (1) Whether the Circuit Court has jurisdiction to enjoin the enforcement of an allegedly
unconstitutional criminal statute, and whether the doctrine of former suit pending bars any challenge
by plaintiffs to the allegedly unconstitutional statute; and (2) whether the Circuit Court erred in
dismissing, sua sponte and during a hearing on a motion for temporary injunction, the causes of
action filed by Appellants in their complaints. We will address each of these two questions in turn.

                                                A.
                    Jurisdiction of circuit court to enjoin a criminal statute,
                       and application of doctrine of former suit pending

        In the trial court’s Order Denying Petition for Temporary Injunction, entered on April 2,
2003, the trial court stated that “this Court cannot grant an immediate remedy [to plaintiffs]. It does
not have the authority to enjoin a district attorney general from prosecuting under the statute at bar.”
In support of this proposition, the court cites Tennessee Downs, Inc. v. Gibbons, 15 S.W.3d 843,
848 (Tenn.Ct.App. 1999), which states:

               A district attorney general is answerable to no superior and has
               virtually unbridled discretion in determining to prosecute and for
               what offense. No court may interfere with the discretion of a district
               attorney general to prosecute, and, in the formulation of this decision
               he or she is answerable to no one.

Id. at 848. The court further denied the Appellants’ motion for declaratory judgment, pointing out
that the Appellants themselves had not yet been subject to criminal prosecution. Only their
employees had been cited for violation of the statute. The trial court wrote,

               [I]f [Appellants] have not yet been subject to prosecution and are only
               alleging that they might become subject to prosecution in the future,
               then a declaratory judgment cannot be granted .... [A] declaratory
               judgment may not be given to ‘allay fears as to what may occur in the
               future.’ Therefore, this Court cannot grant a declaratory judgment
               regarding a future possibility based upon Plaintiffs’ fears of the
               future.

The trial court, in its Order on the Plaintiffs’ motions to alter or amend the judgment, later reversed
its position and found that the Plaintiffs could maintain an action for declaratory judgment. But the



                                                  -5-
court suggested that such a declaratory judgment, even if granted, would be unavailing to the
plaintiffs since the trial court lacked jurisdiction to enjoin a criminal prosecution.

         With respect to the motions for injunction, Appellants disagree with the trial court’s
characterization of the Tennessee law of injunctions, and they cite Planned Parenthood of Middle
Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000), as support for the view that civil courts have
the authority to enjoin the enforcement of a criminal statute. In Planned Parenthood, the Tennessee
Supreme Court found that certain abortion statutes were unconstitutional under the Tennessee
Constitution, and ordered that the trial court enter a permanent injunction restraining the defendants,
in their official capacities, from enforcing the unconstitutional provisions of the challenged statute.

        Appellants’ reliance on Planned Parenthood is misplaced. This Supreme Court’s mandate
for injunction dealt primarily with civil requirements of various participants in the abortion process,
and this Court gave no indication that it was making a material change to the long-standing
established law concerning a civil court’s enjoining prosecution under criminal law. Moreover, in
the case of Denny v. Wilson County, 281 S.W.2d 671 (Tenn. 1955), the Court said:

                        Where an applicable rule, statute or common law, is
                overlooked in the decision of a case, such decision is no authority
                against the rule or for the proposition that the rule is not to be applied
                in a like case in the future.

Id. at 674 (citations omitted).

        Under Tennessee law, a civil court does not have authority to enjoin the enforcement of a
criminal statute, and this court has plainly stated this principle in the case of Campbell v. Sundquist,
926 S.W.2d 250 (Tenn.Ct.App. 1996). In Campbell, homosexual plaintiffs brought an action
challenging the state’s Homosexual Practices Act under various provisions of the Tennessee
Constitution. This court found that it was not within the authority of a civil court to issue the
injunction sought by the plaintiffs, and stated, “[i]t is clear that this court may not enjoin pending or
threatened prosecutions for the violation of the criminal laws of this state.” Id. at 266. The trial court
in the case at bar was correct in finding that it was without jurisdiction to enjoin the enforcement of
the challenged statute.

        The trial court further found that the doctrine of former suit pending “prevents this Court
from being able to decide the same issue which is raised as a defense in the criminal proceeding.”
We disagree with the trial court’s conclusion that the doctrine of former suit pending bars this suit
challenging the constitutionality of a criminal statute. In City of Newport v. Massengill Auction Co.,
19 S.W.3d 789 (Tenn.Ct.App. 1999), we explained the scope of the former suit pending doctrine:
“[T]he two suits must involve the identical subject matter and be between the same parties and the
former suit must be pending in a court in this state having jurisdiction of the subject matter and the
parties.” Id. at 793 (quoting Cockburn v. Howard Johnson, Inc., 215 Tenn. 254, 385 (Tenn.
1964)). The criminal prosecutions cited by the trial court are not between the “same parties” as in


                                                   -6-
the case at bar. Therefore, the doctrine of former suit pending does not bar this action from
proceeding.

       For these reasons, we find that while the trial court was correct in denying Appellants’
motions for temporary and permanent injunction, the trial court erred in finding that the doctrine of
former suit pending barred the Appellants from bringing an action in civil court while the
prosecutions proceeded against their employees, for violation of the Act, in criminal courts.
                                              B.
                     Dismissal of Appellants’ claims by the circuit court

        Appellants contend that the trial court erred in dismissing the complaints of Clinton Books
and Fantasy Warehouse with prejudice when there were several constitutional challenges that were
not raised in Appellants’ motions for temporary injunction. Appellants allege that the court’s sua
sponte dismissal of all of their claims was improper because they were denied the opportunity to
argue these claims fully.

        The trial court’s order dismissing all the Appellants’ claims was titled, “Order Denying
Petition for Temporary Injunction,” and the order was entered after an evidentiary hearing held on
May 16, 2002, and a second hearing on March 13, 2003. At the first hearing, testimony was taken
from several witnesses; at the second hearing, the court heard arguments of counsel. On April 2,
2003, the trial court entered the Order Denying Petition for Temporary Injunction. In its Order, the
court analyzed three of the Appellants’ constitutional claims—that the forced closing times violated
their rights to freedom of expression, that the Sunday and holiday closings unconstitutionally
furthered Christianity, and that the statute violated equal protection because it treats adult bookstores
and adult cabarets differently—and found that they were all without merit. In the Order Denying
Petition for Temporary Injunction, the trial court wrote:

                        Plaintiffs pray for a temporary injunction allowing them to
                reopen their facilities until this matter is resolved. However, this
                Court will dismiss this case based on the doctrine of former suit
                pending, lack of authority to enjoin the district attorney general, and
                the inability to grant a declaratory judgment based on possible future
                events .... Because of the foregoing reasons, Plaintiffs have not
                shown that their rights are being violated because Tennessee
                Code Annotated § 7-51-1402 was not found to be
                unconstitutional. Also, assuming the legislature is correct regarding
                the secondary effects of adult establishments, the State has a greater
                interest in protecting society than Plaintiffs’ economic gains which
                does not rise to irreparable damage. For these reasons, Plaintiffs
                petition for temporary injunction is denied.

                     WHEREFORE, it is hereby ORDERED, ADJUDGED, and
                DECREED that Plaintiffs petition for temporary injunction is denied,


                                                  -7-
                and the Court dismisses the case for lack of jurisdiction. Plaintiffs
                shall be responsible for all court costs equally.

(Emphasis added). However, in its Order on Plaintiffs’ motions to alter or amend the final judgment,
the trial court specifically stated that the challenged statute was constitutional:

        WHEREFORE, it is hereby ORDERED, ADJUDGED and DECREED that
        Plaintiffs’ petition to alter or amend this Court’s previous order is denied; and T.C.A.
        §§ 7-51-1401 through 1406 is found valid under Article II, §17, of the Tennessee
        Constitution.

It is apparent that the trial court, in ruling on the merits of the Appellants’ constitutional claims upon
a hearing of their motions for temporary injunction, either effectively issued a declaratory judgment
or dismissed the action on its merits. In either event, the trial court went beyond the proper scope
of a hearing on a motion for temporary injunction. Rule 65.04(7) of the Tennessee Rules of Civil
Procedure requires that, in order for a hearing of an application for temporary injunction to be
consolidated with a trial of the action on the merits, the trial court must so order. The Rule reads, in
relevant part,

                Before or after the commencement of the hearing of an application for
                a preliminary injunction, the Court may order the trial of the action on
                the merits to be advanced and consolidated with the hearing of the
                application.

In the case of Johnson v. City of Clarksville, 2003 WL 21266937 (Tenn.Ct.App. 2003), the
plaintiff, the Southern Secrets Bookstore in Clarksville, Tennessee, challenged a Clarksville
ordinance regulating adult-oriented businesses, alleging that the ordinance violated the plaintiff’s
First Amendment right of freedom of expression. The trial court consolidated the hearing of the
plaintiff’s application for temporary injunction with a hearing on the merits. The trial court struck
down small portions of the ordinance, but determined that the rest of the ordinance was
constitutional. It dismissed the complaint for declaratory judgment, as well as the plaintiff’s original
complaint. This court found that the consolidation of the hearing of the application for temporary
injunction with a trial on the merits was improper, because the trial court did not give notice to the
parties of such consolidation, pursuant to Tenn.R.Civ.P. 65.04(7). We wrote:

                It is undisputed that the trial court in this case did not order a Rule
                65.04(7) consolidation, nor did it provide notice to the parties of its
                intent to consolidate the hearings. Further, the parties were not
                advised that the court had in fact consolidated the hearings until the
                court issues its memorandum dismissing the action .... Although Rule
                65.04(7) clearly establishes that it is within the authority of the court
                to order an application for temporary injunction consolidated with a
                hearing on the merits, it may not exercise such authority without


                                                   -8-
                 notice to the parties. Notice of the issues to be tried is fundamental to
                 the judicial process, and parties are entitled to such notice in advance
                 of the trial date. The United States Supreme Court has addressed the
                 identical language of Fed.R.Civ.P. 65(a)(2), opining: “[b]efore such
                 an order [of consolidation] may issue, however, the courts have
                 commonly required that ‘the parties should normally receive clear and
                 unambiguous notice ... either before the hearing commences or at a
                 time which will still afford the parties a full opportunity to present
                 their respective cases.’”
Id. at *3 (internal citations omitted). We find nothing in the record that indicates that the trial court
properly ordered the consolidation of the hearing of the application for temporary injunction with
a trial on the merits. Indeed, the transcripts of the proceedings at the trial level contain statements
by Appellants and Appellees to the effect that the hearings on May 16, 2002 and March 13, 2003
were pursuant to the motions for temporary injunction, and that both sides desired a full trial on the
merits at a later date. On neither occasion did the trial court indicate any disagreement with these
statements. For example, at the May 16, 2002 hearing, attorney Steven A. Hart, representing the
Attorney General, engaged in the following colloquy with the trial court:

                        MR HART: ... I would just submit that today we are here on
                the Motions for Temporary Injunction. We are not here for a trial on
                the merits under the Declaratory Judgment Act. There seems to be
                some implication that the Court could just jump ahead and make that
                declaration on the merits and get beyond considering this Motion for
                Temporary Injunction, and the State would object to that, because we
                intend to have discovery and fully prepare this case for trial when it
                comes up.

                THE COURT: Anything else?

A similar colloquy occurred at the March 13, 2003 hearing. Michael Pleasants, attorney for Clinton
Books, and Bradley Shafer, attorney for Fantasy Warehouse, had the following exchange with the
trial court:

                        THE COURT: ... [N]ow, we are to you wanting an injunction
                against criminal prosecution of the—your clients. Is that right?

                        MR. PLEASANTS: Well, against the criminal prosecution of
                our—not of our —yes, of our clients. And also declaratory judgment
                that the act is within the Constitution.

                        THE COURT: Okay. Mr. Shafer is on his feet.




                                                  -9-
                        MR. SHAFER: Well, the only thing I was going to say, Your
               Honor, is that I don’t think we have so limited the Request for relief
               in regard to merely our clients. We have made facial challenge to this
               statute under the state constitution and we are asking for a temporary
               injunction pending a full trial on the merits in this matter against the
               enforcement of this statute against anyone.
                        If the Court may recall from the last evidentiary hearing ....
               Mr. Hart got up and specifically indicated to the Court, and we agree
               with him, that the State wanted it to be clear that this was not their
               trial on the merits, that at a later date, whenever we have a trial on the
               merits, the State would—is probably going to want to present
               additional evidence, as would we, but this is really just limited to
               temporary injunction.

                       THE COURT: All right.

These exchanges between the parties and the trial court make it clear that the parties understood the
purpose of the May 16, 2002 and March 13, 2003 hearings to be limited to considering the plaintiffs’
motions for temporary injunction. Therefore, we find that the trial court improperly entered a final
order without giving notice that the hearings on the motions for temporary injunction were to be
consolidated with a trial on the merits.

                                          CONCLUSION

        Accordingly, the order of the trial court denying the motions for temporary injunction is
affirmed, and the order in all other respects is reversed. The case is remanded to the trial court for
such further proceedings on the declaratory judgment action consistent with this opinion. Costs of
this appeal are assessed one-half to the Appellants, Clinton Books and Fantasy Warehouse, and their
sureties, and one-half to the Appellees, the City of Memphis, Paul Summers in his capacity as
Attorney General, and William L. Gibbons, District Attorney General.




                                       __________________________________________
                                       W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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