author: ALAN E. HIGHERS, J.

text:
    Joy Dawkins ROY and Sam D. Dawkins, et ux, Plaintiffs/Appellees, v. W.T. DIAMOND, Jr., Defendant/Appellant.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Oct. 30, 1999.
    Application for Permission to Appeal Denied by Supreme Court April 10, 2000.

      Lloyd R. Tatum, Tatum & Weinman, Henderson, for appellant.
    J. Houston Gordon, Covington, for ap-pellees.
   ALAN E. HIGHERS, J.

In this legal malpractice case, W.T. Diamond Jr. appeals from a jury verdict entered against him in the Circuit Court of Madison County awarding plaintiffs Joy Dawkins Roy and Sam D. Dawkins $68,800 in compensatory damages and $25,000 in punitive damages.

Facts and Procedural History

This case involves claims against W.T. Diamond Jr. (“Diamond” or “Appellant”) arising from Diamond’s role as executor and attorney for the estate of Jennie Ida Buck (“Buck” or “Deceased”). The proceedings which are pertinent to this appeal took place over several years in both the probate section of the General Sessions Court of Madison County and the Madison County Circuit Court, as well as a disciplinary proceeding against Diamond conducted by the Board of Professional Responsibility.

I. Probate Court Proceedings

The long and confusing history of this case began with the death of Jennie Ida Buck on March 21, 1992. Buck left a holographic will in which, among other things, she appointed Diamond as executor. On April 10, 1992, Diamond admitted Buck’s will to probate in common form and was issued letters testamentary. Following a three year period of alleged inaction and misuse of estate funds, Sam Dawkins, a named beneficiary, filed a petition in probate court seeking to remove Diamond as executor. The petition alleged, inter alia, that Diamond had notified none of the estate’s heirs of the probate proceedings, filed no inventory of the estate, failed to maintain the residence, and misappropriated the estate’s funds. In May 1995, administrators of the estate of Earl Daw-kins, also a named beneficiary, filed a motion to compel inventory and accounting against Diamond. An accounting revealed that Diamond had made approximately $60,100 in disbursements to his law firm from the estate of the deceased without approval of the probate court. The probate court ordered Diamond to reimburse the estate. After several failed attempts at reimbursement, Diamond eventually tendered a cashier’s check in an amount sufficient to repay the estate for money he had removed.

In July 1995, the petition to remove Diamond as executor was granted, and Sam Dawkins and Joy Roy (“Co-administrators” or “Plaintiffs”) were appointed as co-administrators of Buck’s estate . Diamond subsequently filed a petition, to which the new co-administrators excepted, seeking fees and expenses for his services rendered. In March and April 1996, hearings were held in the probate court, at which time the co-administrators sought payment of $13,317.50 in attorney fees and $17,566.50 in administrators fees. They also asserted that Diamond should reimburse the estate for fees and expenses incurred by the co-administrators in trying to get Diamond to account for his receipts and disbursements.

On August 21, 1996, the Probate Court issued a memorandum opinion, which indicated that the fees Diamond claimed were excessive and the time upon which he based his fees was wasteful. As to the fees claimed by both parties, the probate court stated, “the fees to which the executor (i.e., Diamond) would have been allowed by the court for services rendered to the estate would be approximately equal to that incurred by the personal representatives and their attorney, so that there is no recovery by either party on that issue.” The opinion further stated, “[t]he court makes no finding as to damages incurred by the estate due to the alleged malfeasance of the Executor and the resulting waste and deterioration cost thereby, since it is the subject of a separate action pending in the Circuit Court of Madison County, Tennessee.” The probate court entered an order of final judgment on February 27,1997.

II. Circuit Court Proceedings

In April of 1995, Sam Dawkins and Elizabeth Dawkins commenced a pro se action against Diamond in Madison County Circuit Court for damages resulting from his failure to perform his duties as attorney and executor for Buck’s estate. Subsequently, on October 18, 1995, Joy Roy and Sam Dawkins commenced a legal malpractice action against Diamond for “malfeasance” in his capacity as attorney and executor for Buck’s estate. Diamond sought dismissal of the second case .because the previous pro se suit against him was still pending.

On August 14, 1997, an order was entered non-suiting the first circuit court action. On that same date, the court denied Diamond’s motion to dismiss the second action. The second action went to trial and a jury awarded the plaintiffs $68,800 in compensatory damages and $25,000 in punitive damages. Diamond filed a motion for a new trial claiming, inter alia, that the court erred in failing to dismiss all claims for damages for “additional fees and expense charged to the estate of Jennie Ida Buck” because such claims were previously litigated before the probate court. Alternatively, Diamond asked that the Circuit Court reduce the award to $32,800. Diamond’s motions were denied and he appealed to this court presenting the following issues for determination:

1) Whether the trial court erred by refusing to dismiss the plaintiffs’ damage claim for additional fees and expense charged to the estate of Jennie Ida Black.
2) Whether the trial court erred in denying Diamond’s motion to dismiss for prior suit pending.
8) Whether the trial court erred in permitting plaintiffs’ counsel to introduce into evidence the findings of fact and judgment from a professional responsibility disciplinary proceeding.
4) Whether the punitive damages award was supported by the evidence.

Law and Analysis

I. Damage claim for administration fees and attorney fees

The jury awarded the plaintiffs $68,800 in compensatory damages, which were broken down into two components. Thirty-two thousand dollars ($32,000) represented damages for the “deterioration and waste of the assets of Jennie Ida Buck” caused by the Defendant, and $36,-000 was awarded for damages “resulting from additional fees and expense charged to the Estate of Jennie Ida Buck.” It is the latter amount of $36,000 which the Appellant challenges. Appellant claims that the trial court erred in allowing the jury to consider the plaintiffs’ claim for additional fees and expenses. Appellant argues that this issue was fully litigated in the probate court and was, therefore, barred by either res judicata or collateral estoppel.

The Tennessee Supreme Court described res judicata and its related counterpart, collateral estoppel, as follows:

The doctrine of res judicata bars a second suit between the same parties or their privies on the same cause of action with respect to all issues which were or could have been litigated in the former suit. Collateral estoppel operates to bar a second suit between the same parties and their privies on a different cause of action only as to issues which were actually litigated and determined in the former suit.

Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn.1989) (quoting Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn.1987)).

Res judicata and collateral estoppel apply only if the prior judgment concludes the rights of the parties on the merits. A.L. Kornman Co. v. Metropolitan Gov’t of Nashville & Davidson County, 216 Tenn. 206, 391 S.W.2d 633, 636 (1965). A party defending on the basis of res judicata or collateral estoppel must demonstrate that: 1) the judgment in the prior case was final and concluded the rights of the party against whom the defense is asserted, and 2) both cases involve the same parties, the same cause of action, or identical issues. Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Tenn.1995) (citing Scales v. Scales, 564 S.W.2d 667, 670 (Tenn.App.1977). In this regard, the only issue raised before this court is whether the decision of the probate court regarding “fees and expense” was identical to the claim in the circuit court for “additional fees and expense.” Although the use of the words “fees and expense” may imply that the answer is yes, this question does not turn on the choice of language.

The Tennessee Supreme Court, in King v. Brooks, stated that “[ujnder the doctrine of collateral estoppel, when an issue has been actually and necessarily determined in a former action between the parties, that determination is conclusive upon them in subsequent litigation.” 562 S.W.2d 422, 424 (Tenn.1978) (citing Shelley v. Gipson, 218 Tenn. 1, 400 S.W.2d 709 (1966); See also A.L. Kornman Co. v. Metropolitan Government of Nashville and Davidson County, 216 Tenn. 205, 391 S.W.2d 633 (1965). In the present case, the probate court entertained two issues that are relevant to this appeal. First, Diamond had filed a petition seeking fees and expenses he incurred as the executor and attorney for the estate of Jennie Ida Buck. Also, the new co-administrators filed a motion seeking reimbursement of $21,522 in fees and expenses from Diamond, as well as additional fees that would be incurred as a result of Diamond’s alleged malfeasance. On the issue of fees and expenses due both parties, the probate court stated:

1. The Petition for Fees and Expenses filed by W.T. Diamond, Jr., and the Motion for Reimbursement of Fees and Expenses filed by the current Co-Administrators are each hereby granted in part and denied in part. The Court holds, in accordance with its Memorandum Opinion, that the amount of fees and expenses to which Mr. Diamond is entitled and the amount of fees and expenses as to which the current Co-Administrators are entitled to reimbursement are the same and that said sums should be set off, one against the other, with neither party entitled to additional recovery on their respective petition and/or motion.
2. The Exceptions to Accounting filed by the current Co-Administrators are disposed of as follows: (a)to the extent that said Exceptions to Accounting constitute claims for damages that are the subject of a separate action pending in the Circuit Court of Madison County, Tennessee, this Court declines herein to make a ruling on the same, finding that the Circuit Court is the appropriate forum for those claims to be determined; (b)in all other respects, the Exceptions to Accounting are denied and dismissed.

(emphasis added).

The appellees characterize the $36,000 as damages that resulted from Diamond’s malfeasance in his role as executor and attorney. Through this characterization, appellees argue that the $36,000 judgment is not barred because the probate court specifically made no finding as to damages. This is undoubtedly a true statement of what the probate court said. It is also true that the $36,000 was meant to cover damages caused by Diamond’s malfeasance. However, those “damages” come in the form of fees and expenses incurred by the co-administrators and their attorney. In fact, the pertinent jury interrogatory uses the words “fees and expenses.” There can be little doubt that the $36,000 was awarded to compensate the plaintiffs for fees and expenses. The question is whether the probate decision foreclosed the ability of the plaintiffs to recover any fees and expenses, or rather, did the probate decision only foreclose their ability to recover a portion of their fees and expenses. If the answer is the latter, then no preclusion doctrine will apply.

The difficulty of this issue lies in the less than clear language used by the probate court. As such, we are left to interpret the Memorandum Opinion and Final Order of the probate court in order to decide this issue. We regard the probate court decision as fashioning a remedy which basically maintained the status quo. In other words, we read the decision as recognizing that certain things have to be done in the execution of an estate, and the estate should have to pay for those services. In performing their duties, the personal representatives and the attorney incur expenses and earn fees from the estate. Had Diamond done his duty, he would have been entitled to reasonable fees and expenses. Since he did not perform the duties, the new co-administrators and their attorney had to perform the duties required in executing the estate. Since those duties would have to have been performed anyway, the estate is no worse off for having to pay. This can be referred to as the normal expenses involved in closing an estate.

At this point, we wish to emphasize certain facts of this case. Diamond was never paid any money by the estate of Jennie Ida Buck. The co-administrators asked the probate court to make Diamond pay them for their services. If this had been allowed, Diamond would have been forced to pay the normal expenses incurred in closing the estate of Jennie Ida Buck, while the estate would never have paid anything to anyone. Therefore, as we perceive the record, the only issue dealt with by the probate court was the question of who pays the normal expenses involved in closing the estate. The answer to that question has to be that the estate pays.

Nancy Choate, the attorney for the estate after Diamond, alleged that she incurred fees and expenses of $7,522. The co-administrators, Sam Dawkins and Joy Roy, alleged fees and expenses totaling $14,000. We regard this total amount of $21,522 as the amount which the probate court set off against the fees and expenses to which Diamond would have been entitled had he performed his duties. We point out that no “damages” are involved because, presumably, the $21,522 in fees and expenses would have been incurred anyway.

It appears that the probate court intended its decision to go no further than this point. After having disposed of the issues relating to the fees and expenses incurred in the normal course of executing the estate, the probate court left the issue of “damages” to the circuit court (“to the extent that said exceptions to accounting constitute claims for damages ... this court declines herein to make a ruling on the same, finding that the Circuit Court is the appropriate forum for those claims to be determined”). As the circuit court correctly determined, the only issue for the jury was whether the plaintiffs sustained any damages in excess of the $14,000 for Sam Dawkins and Joy Roy, and $7,522 for Ms. Choate.

Having determined that the issue of damages was correctly submitted to the jury, we turn to the question of whether the verdict was supported by the evidence. Forrester v. Stockstill, 869 S.W.2d 328, 329 (Tenn.1994) (when reviewing a judgment based on a jury verdict, appellate courts are limited to determining whether there is material evidence to support the verdict); See also Electric Power Bd. v. St. Joseph Valley Structural Steel Corp., 691 S.W.2d 522, 526 (Tenn.1985); Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn.1978). Ms. Choate testified that she was paid over $20,000 in fees. Of this amount, she testified that approximately $13,500 derived from issues relating to Diamond’s malfeasance. According to Ms. Choate, had Diamond performed his duties as executor and attorney, the estate would not have incurred the additional amount of expenses and fees. Ms. Choate also testified that the eo-administrators were paid some $20,000 more than they would have been paid absent Diamond’s actions in handling the estate. The testimony of Sam Dawkins indicated that he and Joy Roy incurred approximately $36,000 in fees and expenses over and above the $14,000 they requested in the probate court. Taking the strongest legitimate view of the evidence in favor of the verdict, assuming the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and discarding all to the contrary, Crabtree, 575 S.W.2d at 5, it is clear to us that the jury verdict in this case was supported by material evidence. We find no error in the jury verdict as it relates to the $36,000.

II. Prior suit pending

The appellant also argues that the Circuit Court erred in denying his motion to dismiss on the basis of prior suit pending. This argument is based on the fact that the pro se action was still pending when the second action was filed. In essence, both claims were pending at the same time. Appellees respond by pointing out that the original action was non-suited, thereby curing any technical problems.

Initially, Appellant’s argument appears persuasive. The Tennessee Supreme Court has addressed the issue of prior suit pending and seems to fashion the doctrine in such a way so as to encompass the present case. See Cockburn v. Howard Johnson, Inc., 215 Tenn. 254, 385 S.W.2d 101 (1964) (stating that “[i]n Tennessee, a suit is subject to a plea in abatement where there is pending another suit on the same subject.”). The court went on to enumerate the factors that must exist in order for a plea in abatement to lie:

The essentials of such a plea are that the 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. A plea, whether it be in abatement or in bar, must contain these elements.

Id. at 102 (citing Higgins & Crownover, Tennessee Procedure in Law Cases, Sec. 518(6)).

In the present case, the subject matter of both circuit court cases was identical. Both cases were, in effect, malpractice cases against Diamond arising out of his performance as administrator and attorney for the estate of Jennie Ida Buck. Also, both actions were in the same court, with that court having jurisdiction over the parties and the subject matter. One seeming problem is the fact that the plaintiffs in the two cases were different. In the first case, Sam and Elizabeth Dawkins were the plaintiffs, while Sam Dawkins and Joy Roy were the plaintiffs in the second case. Even though the plaintiffs are not identical in both cases, we consider them sufficiently similar so as to make no practical difference. See Cockburn, 385 S.W.2d at 102 (“The defendants in these two cases are not identical but are in effect the same”).

If we were to stop here, it might appear that Appellant’s argument has validity. However, we are persuaded that taking the non-suit in the first circuit court action avoided the bar imposed by the doctrine of prior suit pending.

At common law, a plaintiff could not avoid the effect of a plea in abatement by discontinuing the prior action. Walker v. Vandiver, 133 Tenn. 423, 181 S.W. 310 (1915) (citing 1 Corpus Juris, p. 94, § 132) (“The rule at common law was to sustain the plea if it was true at the time it was filed”). However, the holding of early Tennessee cases is that discontinuance of the prior suit is sufficient to avoid any problems, regardless of whether the discontinuance came before or after the filing of the plea. Id.; See also Harris v. Penn. Nat. Hardware Mutual, 7 Tenn.App. 330 (Tenn.App.1928); Stoll v. United States Fid. & Guar, co., 10 Tenn.App. 539 (Tenn. App.1929). The Tennessee Supreme Court, in rejecting the common law rule, stated:

it is manifest from the authorities above referred to that it has never been recognized by this court as a rule of law binding upon the courts of this state, and it is a rule of law opposed to the policy of our legislation in respect of remedial actions, and opposed to the general spirit of our legislation which seeks to have all controversies determined upon their merits rather than upon the technicalities of the formal procedure of the common law.

Walker, 181 S.W. at 311.

In the present case, the first circuit court action was discontinued by the order entered on August 15,1997. The dismissal of the first action prior to the trial of the second action was sufficient to avoid any technical problems relating to the doctrine of prior suit pending. As such, we find that the trial court did not err in denying Appellant’s motion to dismiss.

III. Disciplinary Proceeding as Evidence of Malpractice

The Appellant asserts that the trial court erred in allowing the plaintiffs’ attorney to introduce into evidence the findings of fact and judgment from a disciplinary proceeding. This error, according to the appellant, unfairly prejudiced him because it was “tantamount to a directed verdict in favor of the appellees ...”

The first question before this court is whether the findings of the disciplinary proceeding were relevant in Appellant’s malpractice trial. All relevant evidence is generally admissible. TenmR.Evid. 402. Rule 401 of the Tennessee Rules of Evidence provides the standard for determining whether evidence is relevant. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence ... more probable or less probable than it would be without the evidence.” TenmR.Evid. 401 (emphasis added). As the Advisory comments make clear, this is not a high standard. See TenmR.Evid. 401, Advisory Commission Comments (“The theoretical test for admissibility is a lenient one, as it should be, ... ”).

There is no doubt that the Code of Professional Responsibility (“the Code”) does not set the standard for determining the civil liability of an attorney. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400 (Tenn.1991). However, that fact does not preclude the possibility that violation of the Code is relevant evidence in a subsequent civil case. Id. at 405 (“the standards stated in the Code are not irrelevant in determining the standard of care in certain actions for malpractice”). The Tennessee Supreme Court recognized that the Code may provide guidance in defining a lawyer’s obligation to a client. Moreover, in some instances, conduct which violates the Code may also be a breach of the attorney’s standard of care. While violation of the Code, standing alone, will not suffice to prove civil liability, it seems clear that such a violation may be relevant evidence of a breach of the standard of care.

Appellant’s primary argument is that the admission of the evidence was unfairly prejudicial and should, therefore, have been excluded. See Tenn.R.Evid. 40B. Undoubtedly, the admission of the judgment and findings of fact from the disciplinary proceeding was detrimental to Appellant’s defense. See Woodson v. Porter Brown Limestone Co., Inc., 916 S.W.2d 896, 907 (Tenn.1996) (noting that extremely persuasive evidence tends to be prejudicial). However, Rule 403, by its language, places a heavy burden on the party seeking to exclude the evidence. Id.; See also Tenn.R.Evid. 408. The rule only excludes evidence if the probative value is substantially outweighed by the danger of unfair prejudice.

The admissibility of evidence is a matter which rests within the sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1998); State v. Williams, 657 S.W.2d 405, 411-12 (Tenn. 1983); Murray v. State, 214 Tenn. 51, 377 S.W.2d 918, 920 (1964); Wright v. Quillen, 909 S.W.2d 804, 809 (Tenn.App.1995); State v. Rhoden, 739 S.W.2d 6, 13 (Tenn. Crim.App.1987). This Court will not interfere with the trial court’s exercise of its discretion absent clear abuse. Williams, 657 S.W.2d at 411-12; Murray v. State, 377 S.W.2d at 920; Rhoden, 739 S.W.2d at 13. The evidence was clearly relevant to issues in dispute in the case. Also, unlike the Lazy Seven case, there was expert testimony in the present case that Diamond violated the applicable standard of care. In Lazy Seven, the expert testimony only related to a violation of the Code, not the standard of care. Lazy Seven, 813 S.W.2d at 407. Therefore, the outcome of that case does not bear on the case at bar. We find no basis for concluding that the trial judge abused his discretion in admitting the evidence.

IV. Punitive Damages

Punitive damages are intended to punish the defendant for wrongful conduct and to deter others from similar conduct in the future. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn.1984) (citing Liberty Mutual Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1963)). These damages refer to the nature of the defendant’s conduct rather than to the injury plaintiff suffered, Breault v. Friedli, 610 S.W.2d 134 (Tenn.App.1980), although actual damages must be found as a predicate for the recovery of punitive damages. Allen v. Melton, 20 Tenn.App. 387, 99 S.W.2d 219, 225 (Tenn.Ct.App. 1936). In awarding punitive damages, the law blends the interests of society and the aggrieved individual and awards such damages as will operate to deter others from like conduct. Pridemark Custom Plating, Inc. v. Upjohn Co., Inc., 702 S.W.2d 566, 573 (Tenn.App.1985) (citing Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899)).

In Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.1992), our supreme court determined that punitive damages are available only where a defendant has acted intentionally, fraudulently, maliciously or recklessly. The court explained:

A person acts intentionally when it is the person’s conscious objective or desire to engage in the conduct or cause the result. A person acts fraudulently when (1) the person intentionally misrepresents an existing, material fact or produces a false impression, in order to mislead another or to obtain an undue advantage, and (2) another is injured because of reasonable reliance upon that representation. A person acts maliciously when the person is motivated by ill will, hatred, or personal spite. A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.

Hodges, 833 S.W.2d. at 901.

In Metcalfe v. Waters, the Tennessee Supreme Court recognized that punitive damages may be awarded in legal malpractice cases provided the standard established in Hodges is proven by clear and convincing evidence. 970 S.W.2d 448, 451-452 (Tenn.1998). In reinstating the jury verdict awarding punitive damages, the Metcalfe court concluded that the attorney’s “repeated transgressions and callous disregard for the rights of his clients” constituted “overwhelming evidence from which the jury could find, at a minimum, reckless conduct, that is, conduct constituting a gross deviation from the applicable standard of care.” Id. at 452.

In the present case, there was abundant evidence presented regarding Diamond’s failure to perform his duties as both executor and attorney. Diamond removed money from the estate without court approval. According to the expert testimony, Diamond was unjustifiably slow, if not inactive, in handling the affairs of the estate. The evidence presented could reasonably support a finding that his conduct constituted a “gross deviation from the applicable standard of care.” See Metcalfe, 970 S.W.2d at 452. As such, we find no error in the award of punitive damages.

Conclusion

The judgment entered by the trial court is hereby affirmed in all respects. Costs of this appeal are taxed to the Appellant, for which execution may issue if necessary.

CRAWFORD, P.J., W.S., and FARMER, J., concur.

      . As a result of his actions in handling the estate of Jennie Ida Buck, Mr. Diamond was the subject of a Petition for Discipline brought by the Board of Professional Responsibility. A Hearing Panel made various findings of fact, and recommended that Mr. Diamond be disbarred. The only issue raised by the disciplinary proceeding relates to its use as evidence in Diamond's malpractice suit.

      . Roy was the niece of the deceased.

      . This figure represents the amount of the total judgment, $93,800, minus the punitive damages award of $25,000 and the award of $36,000 for attorney’s fees and administrator’s fees incurred by the plaintiffs in the execution of the estate.

      . Diamond repaid the $60,100 he took out of estate funds.

      . The circuit court adopted this same position and granted a motion for summary judgment finding that the issue of the $21,522 was barred by res judicata.

      . This is based on the belief that someone had to do the work, and whether it was Diamond or someone else, they would have been entitled to recover an amount close to the $21,-522.

      .By using the word "damages,” we indicate monies expended over and above that which would have been expended in the normal course of executing the estate.

      . Appellees assert in their brief that the Appellant, acting pro se, suggested the two actions be consolidated in order to solve any procedural problems. Allegedly, an order was drawn up to that effect, but Diamond never signed. Appellees argue that this, notwithstanding Diamond's failure to sign the order, operated as consent on the part of Diamond to the non-suit of the first action. Although we find in favor of the appellees on this issue, we do not do so based on this argument.

      . The Tennessee Rules of Civil Procedure replaced "pleas in abatement” with "motions for dismissal.” See T.R.Civ.P. 7.03, 41.02.


source: Caselaw Access Project

author: BEN H. CANTRELL, Presiding Judge, M.S.

license: Public Domain

text:
    In re ADOPTION OF Heather Christine HATCHER, a child under the age of eighteen (18) years. James Hatcher and Velma Christine Hatcher, Plaintiffs/Appellants, v. Heather Patterson, Defendant/Appellee.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Dec. 17, 1999.
    Permission to Appeal Denied by Supreme Court April 17, 2000.

      William H. Farmer, Stephen A. Cobb, Paula A. Flowers, Nashville, for plaintiffs/appellants.
    Jack L. Garton, Dickson, for defendant/appellee.
   OPINION

BEN H. CANTRELL, Presiding Judge, M.S.

Fifteen months after granting the adoption of an infant child, the Juvenile Court of Dickson County voided the adoption for a host of substantive and procedural problems — including the subject matter jurisdiction of the court and the failure of the biological mother to sign the surrender. The adopting parents urge us to hold that Tenn.Code Ann. § 36 — 1—122(b)(1) cures all defects in the former proceeding after the adoption order becomes final. We reject that contention, but hold that the biological mother effectively surrendered the child. We therefore affirm the lower court’s order setting the adoption aside, but we reverse the order returning custody of the child to the biological mother.

I.

Heather Patterson, a pregnant unwed teenager, sought a couple to whom she could surrender the baby for adoption. Through mutual friends she was introduced to James and Christine Hatcher of Waverly. She visited the Hatchers with her parents, and kept in touch with them by telephone. At some point she told the Hatchers that she wanted them to adopt the baby when it was born.

Mr. and Mrs. Hatcher had talked about adopting a child, and upon becoming acquainted with Ms. Patterson and her family, they agreed to adopt the child when they were asked to do so. In the fall of 1997, they contacted the licensed pregnancy and counseling service that was providing services to Ms. Patterson and asked the agency to conduct the home study required for them to adopt the child. The agency agreed, and scheduled an interview with the Hatchers in early January of 1998.

In the meantime, the Hatchers’ relationship with Ms. Patterson continued to develop. They took her to some of her medical appointments, and spent some time with her at Christmas in 1997. They were present when the baby was bom on February 6, 1998, and they took the baby home with them when she was released from the hospital on February 14, 1998.

The Hatchers hired a lawyer to assist them with the adoption, but for some reason not explained in the record, the legal system completely failed the Hatchers in their attempt. The lawyer apparently drew up a petition for adoption, the surrender forms for the mother and the adopting parents, a waiver of interest of the putative father, and a final order of adoption. Then he sent the Hatchers by themselves to get the court’s approval for the adoption, ignoring all the procedural steps usually required.

The petition is addressed to the Chancery Court of Dickson County and the final order directs the “Clerk and Master to complete the forms necessary for the state to issue a new birth certificate for the child.” The signature line, however, refers to the Juvenile Judge of Dickson County by name and title. Whether a petition was ever filed in the Chancery Court is still a mystery. In this record the word “Chancery” is marked out of the petition and the word “Juvenile” is written in. Why the juvenile judge accepted the petition and signed the order of adoption is not explained in the record either.

The Hatchers executed the petition for adoption on February 12, 1998. The petition contained the following two paragraphs:

8. Petitioners would state that there has been full compliance with the law in regards to the surrender of the child to your Petitioners and that all parties’ pursuant to law have received a copy [of] said surrender.
9. Petitioners would state that the biological mother has given her consent and does hereby execute this Petition for Adoption further evidencing her consent and that she is under no undue influence and that no consideration has been given to them for the purposes of agreeing to said adoption. Petitioners would further state that the biological mother understands that the entry of an Order confirming the parental consent, without revoking the parental consent prior to the entry of such an Order would terminate that parents parental rights to the child forever and that the parents will have no legal rights to the custody, or control of the child in the future. Further Petitioners would state that the biological father has signed a Waiver of Interest.

Ms. Patterson executed the petition under oath before the juvenile judge of Dickson County on March 4, 1998. The oath she took states that “she has read the foregoing Petition for Adoption and that the facts set forth herein are trae to the best of her knowledge, information and belief .... ”

The record contains the filled-out forms for the surrender of the child directly to the adoptive parents, but the forms are not signed by the Hatchers nor by Ms. Patterson. The executed Waiver of Interest by the putative father is in the record.

The final order of adoption recites that it came on to be heard on the petition and, among other things, upon the “surrender of a child by the natural parents directly to the adoptive parents.” The order was signed by the juvenile judge and dated March 11, 1998. The order in this record does not contain any information about where or when it was filed in the records of the juvenile clerk. No one has offered an explanation why the petition is stamped filed by the juvenile clerk on April 3, 1998 — three weeks after the juvenile judge signed the order of adoption.

On February 16, 1999, Ms. Patterson filed a petition to set aside the adoption because “this court lacks jurisdiction to grant an adoption, that no home study was ever completed, and that no surrender and acceptance was executed.”

At a hearing on June 80, 1999, the court heard only an argument about the legal issues involved. Apparently convinced that the adoption order was fatally defective, the court ordered the adoption set aside and the child returned to Ms. Patterson the next day. The court did not inquire about Ms. Patterson’s parental fitness or the effect that such an abrupt change of custody would have on the child, her biological mother, or the adoptive parents. We stayed the June 30 order and directed the parties to work out a mutually acceptable visitation plan for Ms. Patterson.

II.

The Hatchers do not assert on appeal that the Juvenile Court of Dickson County had subject matter jurisdiction over adoptions or that the proceedings in that court conformed to the statutory requirements for adoptions. They also concede that a judgment rendered by a court without subject matter jurisdiction is void, see New River Lumber Co. v. Tennessee Ry. Co., 141 Tenn. 325, 210 S.W. 639 (1919), and that subject matter jurisdiction cannot be conferred by waiver or consent, see Riden v. Snider, 832 S.W.2d 341 (Tenn. Ct. App.1991). Nevertheless, the Hatchers insist Tenn.Code Ann. § 36-1-122(b)(1) prevents the parties to the adoption from raising the jurisdictional question after the order becomes final. That section provides:

(b)(1) After the final order of adoption is entered, no party to an adoption proceeding, nor anyone claiming under such party, may later question the validity of the adoption proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise, but shall be fully bound by the order, except for such appeal as may be allowed by law.

If one reads Tenn.Code Ann. § 36-l-122(b)(l) literally and in isolation the Hatchers’ contention has some merit. We think however that the statute should be read as a whole, because statutes similar in subject matter must be construed so as to make the legislative scheme operate in a consistent manner. Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343 (1948). Reading the Act as a whole, we note that subsection b(l) was part of the statute passed in 1951. See 1951 Tenn.Pub. Acts Ch. 202. In 1995 the legislature overhauled the adoption law, passing a seventy-four page bill that re-enacted portions of the prior law with new provisions tucked in at appropriate places. See 1995 Tenn.Pub. Acts Ch. 532. That Act added section (b)(2). Now the two sections stand adjacent to each other.

(b)(1) After the final order of adoption is entered, no party to an adoption proceeding, nor anyone claiming under such party, may later question the validity of the adoption proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise, but shall be fully bound by the order, except for such appeal as may be allowed by law.
(b)(2) In no event, for any reason, shall an adoption be overturned by any court or collaterally attacked by any person or entity after one (1) year from the date of entry of the final order of adoption by a court of competent jurisdiction. This provision is intended as a statute of repose.

If subsection (b)(1) had the meaning for which the Hatchers contend, then subsection (b)(2) would have been completely unnecessary — at least as to parties to the adoption. Under their version of (b)(1) parties could not attack the adoption order for any reason thirty-one days after the court signed it. Nevertheless, the legislature passed (b)(2) in 1995 saying that no person could launch a collateral attack on an adoption order signed “by a court of competent jurisdiction” after one year had passed. Under (b)(2), if the court does not have subject matter jurisdiction, the order may be attacked even beyond the one year period. This result is more consistent with the traditional view that a judgment rendered without subject matter jurisdiction may be attacked at any time. See 47 Am.Jur.2d Judgments § 838; Hughes v. Aetna Casualty & Surety Company, 234 Or. 426, 383 P.2d 55 (1963). Earlier adoption cases in Tennessee stand for the same proposition. See Crocker v. Batch, 104 Tenn. 6, 55 S.W. 307 (1900); Redmond v. Wardrep, 149 Tenn. 35, 257 S.W. 394 (1923).

We cannot ignore the obvious intent of the legislature, City of Oak Ridge v. Morgan, 214 Tenn. 561, 381 S.W.2d 901 (1964), but we should not interpret a statute in a way that leads to an absurd result. Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914 (1963). If we interpret section (b)(1) literally we would have to ignore section (b)(2), the more recent legislative enactment. We think the legislature would be startled to find that a court without subject matter jurisdiction (a traffic court, for instance) could nullify all the safeguards the legislature has built into the adoption statutes, and the adoption could not be set aside thirty-one days after the order was signed. Therefore, we hold that Tenn.Code Ann. § 36-l-122(b)(l) does not bar an attack on an adoption order entered by a court lacking subject matter jurisdiction.

The order of adoption entered by the Juvenile Court of Dickson County was, and is, a nullity.

III.

We are satisfied, however, that Ms. Patterson effectively surrendered the child. The Juvenile Court of Dickson County does have jurisdiction to accept her surrender, Tenn.Code Ann. § 36-1-111(b), and Ms. Patterson did everything necessary to surrender the child except sign the surrender document. She selected the Hatchers as the persons she wished to adopt her child. She appeared in court before the juvenile judge and signed the adoption petition under oath. The petition alleged that “there has been full compliance with the law in regards to the surrender of the child ... and that all parties pursuant to law have received a copy of said surrender.” A copy of a formal surrender form is in the record although it is not signed by Ms. Patterson. The petition prayed for a final order of adoption by the Hatchers and alleged:

9. Petitioners would state that the biological mother has given her consent and does hereby execute this Petition for Adoption further evidencing her consent and that she is under no undue influence and that no consideration has been given to them for the purposes of agreeing to said adoption. Petitioners would further state that the biological mother understands that the entry of an Order confirming the parental consent, without revoking the parental consent prior to the entry of such an Order would terminate that parents parental rights to the child forever and that the parents will have no legal rights to the custody, of control of the child in the future.

At oral argument counsel for Ms. Patterson conceded that Ms. Patterson intended to permit the Hatchers to adopt the child and that she has no basis to challenge the adoption other than the defects and oversights in the preparation and execution of the forms. Counsel also conceded that Ms. Patterson made the decision to surrender the child with full understanding of her options and the consequences of her decision. There is no evidence in the record that she felt any remorse about her decision or that she attempted to revoke her surrender within the time provided by Tenn.Code Ann. § 86-1-112 (1996).

Under all the circumstances, we are convinced that the proceedings in this case substantially complied with the statutory requirements for a valid surrender, see Brown v. Raines, 611 S.W.2d 594 (Tenn. Ct. App.1980). Tenn.Code Ann. § 86 -1-lll(k)(l)(C)(i)(Supp.1999) states that as an alternative to witnessing the mother’s signature on the surrender form, the court may “witness the actual act of surrender ... by questioning the parent on the matters required by this part before the entry of an order of confirmation of the parental consent.” Ms. Patterson does not contend that the Juvenile Judge failed to ask the questions “required by this part,” and as we have pointed out, she was knowledgeable about and comfortable with her decision at the time of the surrender.

Undoubtedly other unfulfilled requirements lurk in the labyrinthine provisions of the adoption laws, but as a consequence of her surrender Ms. Patterson no longer has the standing to raise them.

We affirm the order below setting the adoption aside. We reverse the order returning custody of the child to Ms. Patterson. Tax the costs on appeal equally to Ms. Patterson and the Hatchers.

KOCH and CAIN, JJ., concur.

      . The parties have not addressed the constitutional problems that might result from a literal interpretation of Tenn.Code Ann. § 36-1-122(b)(1). Therefore, we will not address them here, but we do point out that applying short statutes of limitations in adoption cases to prevent a challenge on jurisdictional grounds has been held to offend the right to due process. See In Re Adoption of Knipper, 30 Ohio App.3d 214, 507 N.E.2d 436 (1986); Campbell v. Kindred, 26 Or.App. 771, 554 P.2d 599 (1976); White v. Davis, 163 Colo. 122, 428 P.2d 909 (1967).


text:
    STATE of Tennessee, ex rel., William L. GIBBONS, Petitioner/Appellee, v. Sherrod JACKSON, Robert Williams, Nathaniel Williams, Mike Williams, Shirley Blalock and Steven Craig Cooper, Defendants/Appellants.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Oct. 5, 1999.
    Application for Permission to Appeal Denied by Supreme Court April 24, 2000.

      Michael F. Pleasants, Frierson M. Graves, Jr., Memphis, TN, for appellants, Sherrod Jackson, Robert Williams, Nathaniel Williams and Shirley Blalock.
    Rex L. Brasher, Jr., Brown, Brasher & Smith, Memphis, TN, for appellant, Steven Craig Cooper.
    John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Steven A. Hart, Special Counsel, Nashville, TN, for appellee.
   ALAN E. HIGHERS, J.

Sherrod Jackson, Robert Williams, Nathaniel Williams, Mike Williams, Shirley Blalock, and Steven Craig Cooper (collectively “Appellants”) appeal from the Chancery Court of Shelby County, which granted a temporary injunction, enjoining the Appellants from permitting “lap dancing” and from permitting employees or independent contractors from engaging in “lewd and obscene exhibition of genitals.”

I. Facts and Procedural History

Appellants allegedly own and/or operate an “adult cabaret” business in Memphis, Tennessee named “Pure Passion.” As part of a police operation, members of the Memphis Police Department visited “Pure Passion” on several occasions wherein they witnessed various “acts” involving female dancers and male customers. The results of the investigation formed the basis for an action that the State originally filed in July of 1997 in the Criminal Court of Shelby County, seeking an abatement (forfeiture and permanent injunction) of nuisance, and a writ of temporary injunction. Pursuant to local rules, the Criminal Court entered an order on July 8,1997, which transferred the case to the Chancery Court. On September 3, 1997, the State filed a notice of amendment to the petition for abatement whereby the State dropped any request for forfeiture of real property and any relief based on public indecency or the common law. Subsequently, the State filed a First Amended Petition for Abatement of Nuisance with the Chancery Court, which incorporated the amendment eliminating the aforementioned claims for relief.

A hearing was held on September 5, 1997 regarding the temporary injunction. At that hearing, the Chancellor expressed his reluctance to close down the business. Further, he expressed a predisposition to enjoin certain acts pending a full hearing. Ultimately, the final order that is the subject of this appeal was entered on September 26, 1997. In that order, the Chancellor determined that “lap dancing” constituted an act of prostitution, and he issued a temporary writ of injunction enjoining such activity as a nuisance under T.C.A. § 29-3-105. Additionally, the Chancellor enjoined any “lewd and obscene exhibition of genitals.”

II. Law and Analysis

On appeal, the Appellants have raised three issues regarding the Chancellor’s order enjoining “lap dancing” and “lewd and obscene exhibition of the genitals.” Those issues are:

1) Whether the Chancellor erred in determining that “lap dancing” as conducted at the Appellants’ place of business constitutes “prostitution,” thereby subject to a temporary writ of injunction under T.C.A. § 29-3-105(a);
2) Whether the Chancellor’s issuance of an injunction against future “lewd and obscene exhibition of the genitals” is an unconstitutional prior restraint in violation of the First Amendment to the United States Constitution or a violation of Appellants’ Fourteenth Amendment Due Process rights.
3) Whether “lewdness” and “obscenity” have been elided from the Tennessee Nuisance statute, T.C.A §§ 29-3-101 et seq., and, if not, whether the inclusion of those terms makes the statute unconstitutionally overbroad or void for vagueness.

A. Prostitution under T.C.A. § 29-3-101

Tennessee Code Annotated § 29-3-101(2) provides a definition of a “nuisance.” That definition includes “any place in or upon which ..., prostitution, ... are carried on or permitted, ...” Tenn.Code Ann. § 29-3-101(2) (emphasis added). The Code does not, however, further define “prostitution” or describe the activities which that term might encompass. The Appellants do not take issue with prostitution being a triggering event for the finding of a nuisance. In that regard, they are not challenging the validity of T.C.A. § 29-3-101(2). Instead, we understand the Appellant’s challenge to rest on two interdependent grounds: 1) under a proper interpretation, sexual penetration, oral sex, or homosexual sex is a prerequisite to a finding of “prostitution,” and 2) since there were no allegations that these acts ever occurred at “Pure Passion,” the Chancellor erred in finding that prostitution had taken place. To the contrary, the State contends, and the Chancellor agreed, that “lap dancing” itself, despite the absence of intercourse or penetration, constitutes prostitution.

The Appellants challenge both the legal definition of “prostitution” and the factual application in the present case. The construction of a statute and application of the law to the facts is a question of law. Beare Co. v. Tennessee Dep’t of Revenue, 858 S.W.2d 906, 907 (1998) (citing Moto-Pep v. McGoldrick, 202 Tenn. 119, 803 S.W.2d 326, 330 (1957)). As such, there is no presumption of correctness attached to the Chancellor’s decision. Capps v. Goodlark Medical Center, Inc., 804 S.W.2d 887, 888 (1991) (citing Katz v. Bilsky, 759 S.W.2d 420, 421-422 (Tenn.App. 1988)). We are, therefore, charged with the responsibility of determining the parameters of the word “prostitution” as used in T .C.A. § 29-3-101(2) and whether the facts of this case fall within those parameters.

The standard for determining prostitution has previously been the subject of dispute in this state. See State v. Boyd, 925 S.W.2d 237 (Tenn.Crim.App. 1995). The court’s role in statutory interpretation is to ascertain and effectuate the legislature’s intent. State v. Sliger, 846 S.W.2d 262, 263 (Tenn.1993). The legislative intent should be derived from the plain and ordinary meaning of the statutory language when a statute’s language is unambiguous. Carson Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d 1, 2 (Tenn.1993). However, when a statute’s language is ambiguous and the parties legitimately derive different interpretations, we must look to the entire statutory scheme to ascertain the legislative intent. Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995). In the present case, the parties are entirely reasonable in their alternative positions. The statute does not provide a clear answer to what acts constitute “prostitution.” As such, we must undertake to interpret the statute under the recognized rules of statutory construction, considering the entire statutory scheme.

In endeavoring to determine the meaning of the term “prostitution,” we can look to other sections of the Tennessee Code. See Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994) (the construction of one statute, if doubtful, may be aided by the language and purpose of another statute dealing with the same subject). In their briefs, both parties have referred to T.C.A. § 39-13-512. This section defines “prostitution” in the criminal context as “engaging in, or offering to engage in, sexual activity as a business ...” Tenn.Code Ann. § 39-13-512(5). “Sexual activity,” in turn, means “any sexual relations including homosexual sexual relations.” Tenn.Code Ann. § 39-13-512(6).

We are left with a two-prong analysis. We must first determine what qualifies as a “sexual activity.” Second, we must determine whether the “sexual activity,” if found to exist, is conducted as a business. One would hesitate long to argue that the activity in Appellants’ place of business, whatever the nature of that activity, is undertaken as anything other than a business. No authority need be cited for the proposition that “lap dancing,” in such establishments, will always involve the exchange of money between “customer” and “dancer.” In this regard, if the “lap dancing” conducted at Appellants’ place of business is found to constitute “sexual activity,” undoubtedly such would qualify as an act of prostitution under the statute.

We note that certain words or terms are defined elsewhere in the Code, but are conspicuous by their absence in the definition of prostitution. Of particular signifi-canee, the term “sexual penetration” is not included in the definition of prostitution. That term is, however, defined elsewhere as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen is not required.”TENN.CoDE Ann. § 39-13-501(7). We find no indication that “sexual penetration” or “sexual intercourse” are applicable to the section at issue in the present case, namely T.C.A § 39-13-512. The clear inference is that the Legislature did not intend for prostitution to be limited to those instances where sexual penetration or intercourse occurs. Appellants point out that past prostitution statutes, particularly the 1943 version, have referred to “sexual intercourse.” Appellants’ Brief at 47. Additionally, they state that the 1986 version used the terms “sexual intercourse,” “deviate sexual intercourse,” and “sexual contact.” Appellants assert that by taking out the specific references to intercourse or “sexual contact,” the Tennessee General Assembly limited the conduct that would be defined as prostitution. We disagree. The fact that such requirements were previously in the statute but were taken out, shows that the Legislature intended to expand the definition of prostitution beyond intercourse. We read the statute to include acts that would not have been included under prior definitions (ie., acts not involving intercourse or penetration). Had the Legislature intended to equate prostitution with intercourse, we must presume that language expressing such intent would be found. As such, we reject Appellants’ argument that the current version of the definition of prostitution should be read to require sexual intercourse, oral sex, or homosexual relations.

We are not alone in rejecting the interpretation that Appellants thrust upon the term “prostitution.” In State v. Boyd, the Court of Criminal Appeals, although reversing the conviction of two female “dancers” for prostitution, declined to interpret the word “prostitution” as requiring any sexual penetration. 925 S.W.2d 237 (Tenn. Crim.App.1995). In Boyd, the two female defendants were employees of an escort service and had gone to a hotel room with an undercover police officer. Id. at 241. There, they removed each other’s clothing and began to touch each other’s buttocks. Id. One defendant placed her face “near” the other’s genital area and later proceeded to “suck” the officer’s finger. Id. On appeal, the defendants argued that the evidence was insufficient to convict them of prostitution. Id.

The issue in Boyd was whether the prostitution statute gave adequate warning of what activities or actions were prohibited under the guise of “sexual relations.” The court briefly surveyed the range of activities that might or might not be “sexual relations.” Id. at 243 (citing People v. Love, 111 CaLApp .3d Supp. 1, 168 Cal. Rptr. 591 (Super.Ct.1980) (finding the fondling of genitals, buttocks, and breasts to be “sexual relations”); People v. Hill, 103 Cal.App.3d 525, 163 Cal.Rptr. 99 (1980) (nude modeling held not to be prostitution)). The Boyd court went on to state succinctly what we believe to be the crucial issue in the present case: “Although many people would agree that actual intercourse is not necessary to constitute ‘sexual relations,’ there may be much disagreement as to which sexually arousing or suggestive acts short of intercourse constitute sexual relations and which do not.” Id. at 244.

The Court of Criminal Appeals reversed the conviction of the defendants because, in essence, the actions of the defendants did not amount to “sexual relations” as the court interpreted the statute. The court stated:

There was some contact between the dancers and between the dancer and the patron, but there was no touching of the genitals between the dancers and only the finger of the patron was touched. The question is whether the statute gave the dancers adequate warning that their conduct amounted to “sexual relations.” While there is no doubt that the dancers intend for their act to be sexually arousing and suggestive of more intimate acts, we conclude that the language of the statute did not give them or anyone else sufficient warning that those acts would constitute ‘sexual relations’ such as is prohibited by the prostitution statute.

Id.

While we fully agree with the analysis used by the Court of Criminal Appeals, the present case presents a distinct factual difference from that dealt with in Boyd. Specifically, the contact between dancers and customers at “Pure Passion” and the contact in the Boyd case are clearly distinct. In Boyd, the dancer only sucked the finger of the undercover police officer. However, in the present case, the record shows that customers were able to touch the bare breasts and buttocks of the dancers, as well as there being contact between the customer’s groin area and the dancer’s hands and/or buttocks. In short, the present case is distinguishable from Boyd in both the quantity of contact and sexual quality of that contact.

The legislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language used, when read in the context of the entire statute, and without any forced or subtle construction to limit or extend the import of the language. Worrall v. Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977); City of Caryville v. Campbell County, 660 S.W.2d 510, 512 (Tenn.App.1983). We must enforce the statute as written. The statute contains no requirement of penetration or intercourse; therefore, we decline the opportunity to craft such a requirement. The activities described in the record as taking place at Appellants’ place of business clearly satisfy the standard of “sexual activity as a business.” As such, we find no error in the Chancellor’s ruling that “lap dancing,” as conducted at the Appellants’ place of business, constituted “prostitution” as that term is used in T.C.A. § 39-13-512. The Chancellor’s issuance of an injunction against such activity was proper pursuant to T.C.A. § 29-3-105(a).

B. Lewdness and Obscenity

The Appellants also argue that the Chancellor erred in granting the temporary writ of injunction in regards to “lewd and obscene exhibition of the genitals.” This argument is based upon two points. First, Appellants assert that the injunction operates as an unconstitutional prior restraint in violation of the First Amendment to the United States Constitution. Second, Appellants argue that “lewdness” and “obscenity” have been elided from the nuisance statute, and if this is not so, they urge this court to strike down those provisions as overbroad and/or void for vagueness. This second point presents a myriad of seemingly conflicting case law. See generally Airways Theater, Inc. v. Canale, 366 F.Supp. 343 (1973); Davis-Kidd Booksellers v. McWherter, 866 S.W.2d 520 (Tenn.1993); State ex rel. Webster v. Daugherty, 530 S.W.2d 81 (Tenn.App. 1975); State of Tennessee ex rel. Dossett v. Richland Bookmart, Inc., 1990 WL 209331 (Tenn.App.E.S., Dec. 21, 1990). We find no need, however, to reach the Appellants’ argument attacking the validity of the statute on the grounds of vagueness and/or overbreadth. We find the Chancellor’s order in regards to “lewd and obscene exhibition of the genitals” to be a prior restraint in violation of the First Amendment to the United States Constitution.

We begin by recognizing that nude dancing is entitled to some measure of First Amendment protection. See generally Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). Although we do not consider the extent of that protection to be important to the present case, the fact that such protection does exist is of vital importance. Based upon the record, we find no mention of specific activities which were deemed to be “lewd and obscene.” In fact, the order makes only two references to “lewd and obscene exhibition of genitals.” We realize that the intent of the order was to enjoin specific acts. However, at present, there is no way to know what those acts might be. Simply stated, the injunction attempts to prohibit a future undescribed activity. There has been no determination that any act sought to be enjoined is in fact obscene. More to the point, we do not even know what those acts might be. As appellants note in their brief, “[a]n injunction which incorporates the statutory definition of obscenity ... merely begs the question.” In this case, the Chancellor’s order merely incorporates the phrase “lewd and obscene .” As such, knowing the specific acts that are enjoined is impossible. In light of the fact that the Appellants business is entitled to some measure of First Amendment protection, it appears that the injunction will infringe on protected rights.

The United States Supreme Court, in Vance v. Universal Amusement Co., Inc., noted that the burden of supporting an injunction against a future exhibition is even heavier than the burden justifying the imposition of a criminal sanction. 445 U.S. 308, 316, 100 S.Ct. 1156, 1161, 63 L.Ed.2d 413 (1980) (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)). The present injunction impermissibly places the burden on the Appellants by forcing them to choose one of two courses of action. They may continue to operate their business in the same manner as always and risk a contempt proceeding, or, alternatively, they may attempt to discern the scope of the injunction and limit the activities in their business accordingly. Either choice presents risks to the Appellants because there is no way to know which acts will or will not be allowed. In essence, the State becomes the decision-maker as to what is “lewd and obscene” due to the absence of a judicial determination.

The Tennessee Supreme Court dealt with a similar issue in News Mart, Inc. v. State ex rel. Webster, 561 S.W.2d 752 (1978). In that case, the trial court issued a permanent injunction against the showing of: “(1) the untitled motion pictures ‘described in the complaint and the affidavit of Captain Roy Whitfield’ filed as an exhibit to the complaint, and (2) ‘any film, picture, publication, or other matter which depicts explicit acts of fellatio, cunnilingus, and excretory function of the human body.’ ” News Mart, 561 S.W.2d at 753. The Tennessee Supreme Court struck down the injunction pertaining to the future showing of unnamed and undescribed films finding that such an injunction would be a prior restraint on the freedom of expression. Id. (emphasis added). We find nothing in the present case to distinguish the News Mart decision to the extent the present injunction purports to enjoin future unspecified acts. In fact, the injunction struck down in News Mart was, if anything, more specific than the injunction in the present case, yet was still found to be an unconstitutional prior restraint.

In its present posture, this case presents an unconstitutional prior restraint in violation of the First Amendment to the United States Constitution. See Near v. Minnesota ex rel Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); News Mart v. State, ex rel Webster, 561 S.W.2d 752 (1978). Under the injunction, the Appellants could be found guilty of contempt even though no court had ruled on the lewdness or obscenity of a specific act. See Freedman v. State of Maryland, 380 U.S. 51, 60, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965) (emphasis added) (citing, with disapproval, the fact that “[ujnder the statute, appellant could have been convicted if he had shown the film after unsuccessfully seeking a license, even though no court had ever ruled on the obscenity of the film.”). As such, we find the deficiency in regard to this issue to be the specificity, or lack thereof, in the Chancellor’s order as opposed to any statutory problems relating to “lewdness” or “obscenity.” The Chancellor in this case attempted to prohibit acts that had not yet been declared obscene, and more importantly, that may ultimately be determined not to be obscene. The justification for prohibiting such restraints may be summed up in noting that:

a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.

Vance, 100 S.Ct. at 1161, n. 13 (citing Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975)).

Accordingly, we reverse that part of the Chancellor’s order relating to “lewd and obscene exhibition of the genitals.”

III. Conclusion

The judgement entered by the Chancery Court is hereby affirmed in part and reversed in part. Costs of this appeal are taxed one-half to each party, for which execution may issue if necessary.

CRAWFORD, P.J., W.S., and FARMER, J., concur.

      . Those acts included: male customers fondling the bare breasts and buttocks of female dancers, female dancers sitting in the laps of the male customers gyrating their buttocks in the customer’s groin area, dancers rubbing the groin area of a male customer, and a male customer sucking the breasts of a female dancer.

      . The chancellor defined “lap dancing” as "consisting of the touching of the employee or independent contractor of her breast to the face or torso of a male customer or the touching by the employee or independent contractor of her buttocks or genital area, whether clothed or unclothed, to the lap of the male customer.”

      . Although the parties have worded their questions presented somewhat differently, their briefs show that they are in general agreement as to the actual issues before this court. Additionally, the parties have numbered their questions presented in reverse order from each other. We will refer to the issues as they are numbered in this opinion.

      . The defendants also argued that the Tennessee prostitution statute is void for vagueness. The Court of Criminal Appeals summarily rejected that argument. Boyd, 925 S.W.2d at 244.

      . Although the Boyd case arose in the context of a criminal prosecution, the exact legal questions before that court, namely the coverage of the terms "prostitution” and “sexual relations,” are pertinent to the present case. Additionally, the Boyd case involved an interpretation of T.C.A § 39-13-512, the same section that the parties to this action rely upon.

      . We summarily reject any notion that this activity (z'.e, "lap dancing”) is protected under the First Amendment to the United States Constitution, see Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986)(citing Paris Adult Theatre I v. Slaton, 413 U.S. 49. 67, 93 S.Ct. 2628, 2640. 37 L.Ed.2d 446 (1973))(discussing the "fallacy of seeking to use the First Amendment as a cloak for obviously unlawful public sexual conduct by the diaphanous device of attributing protected expressive attributes to that conduct.”)

      . Similarly, we do not reach the question of whether "lewdness” and "obscenity" have been elided from the Tennessee nuisance statute, T.C.A. §§ 29-3-101 etseq.

        . “1. No employee or independent contractor shall engage in the lewd and obscene exhibition of genitals.”
      “3. The served Defendants herein are further enjoined from permitting employees or independent contractors employed or working at the building, located at 1849 East Brooks Road, Memphis, Tennessee to engage in the lewd and obscene exhibition of genitals."

      . The Court also struck down the injunction as to the motion pictures described in the complaint finding that the order lacked the specificity required by Tennessee Rule of Civil Procedure 65.02. News Mart, 561 S.W.2d at 753.


author: MEYERS, J.,

text:
    Stephen Christian SANDERS, Appellant, v. The STATE of Texas.
    No. 1131-99.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1999.
   MEYERS, J.,

delivered a dissenting opinion to refusal of appellant’s petition for discretionary review

in which JOHNSON, J., joined.

This case presents a valuable opportunity to clarify the quantum of cause necessary to justify an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Given this Court’s recent mandate instructing Texas appellate courts to review such Fourth Amendment claims de novo, see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), it is even more important to seize this opportunity to further delineate the contours of the doctrine of “reasonable suspicion.” By all accounts, that doctrine presents an “elusive concept.” See United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The line demarcating where a “particularized suspicion” begins and an “inarticulate hunch” ends is a fuzzy one. Appellant’s petition presents a case which lies very close to, if not over, that line. It is also a case that deserves to be briefed and argued before this Court. It is these borderline cases which inform and define the concept of reasonable suspicion as a whole. See Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (“[T]he legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles”). I dissent to the Court’s refusal to grant Appellant’s Petition for Discretionary Review.

On February 4, 1998, Officer David La-Vigne was one of several police officers patrolling the Wolflin area of Amarillo, where there had been numerous burglaries. The officers had been assigned “to flood the area ... to see if [they] could catch the burglars.” Around midnight, a police dispatcher advised LaVigne of an attempted burglary in the area. LaVigne was told only that the attempted burglary involved two male subjects with flashlights who fled on foot northbound in an alley.

Approximately two or three minutes after the initial dispatch and roughly three or four blocks from the crime scene, LaVigne spotted a car containing “two people” heading away from the “general direction” of the burglarized residence. Although the driver did not violate any traffic laws and neither occupant acted in an unusual manner, La-Vigne decided to stop and detain them. He later testified that he did so for the following reasons: (1) he had a “hunch” that the appellant and his passenger were the suspected burglars; (2) there were two occupants in the car; (3) the car was headed northbound; (4) the car was within three or four blocks of the scene; (5) only two or three minutes had elapsed since he initially received the dispatch; (6) there were no other vehicles in the neighborhood, which had little traffic at midnight; and (7) he made a “common sense” supposition that burglars needed a means to escape the scene and that “it’s not unusual for burglary suspects to park a couple of blocks away, commit the crime, go back to their vehicle with the goods and leave.” Based on the stop, appellant was charged with possession of marijuana. Appellant moved to suppress the drugs as the fruit of an illegal detention. The trial court declined to suppress the evidence.

In a 2-1 decision, the Court of Appeals affirmed the trial court’s ruling. Sanders v. State, 992 S.W.2d 742 (Tex.App. — Amarillo 1999). Although the majority noted that “appellant was not engaged in unusual or surprising activity which would, in and of itself, support a reasonable suspicion that appellant was ... engaged in criminal activity,” see id. at 749, it found determinative certain language in Supreme Court opinions suggesting that “trained officers may permissibly draw inferences and make deductions that might well elude an untrained person.” Id. at 746 (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Based on Officer LaVigne’s experience as a police officer, the majority concluded that the facts and circumstances were sufficient to justify his stop of the vehicle. Id. at 749.

In a vigorous dissent, Justice Quinn argued that the objective facts recited by Officer LaVigne did not add up to the existence of reasonable suspicion. Id. at 761 (Quinn, J., dissenting). Justice Quinn pointed out that, while Officer LaVigne may have responded quickly to the radio call, there was no testimony about the amount of time that intervened between the actual crime and the initial dispatch. Id. at 761-52. He also noted that appellant was not seen at the crime scene, as distinguished from the cases cited by the majority. Id. Moreover, he found nothing unusual in the fact that appellant happened to be driving through the neighborhood at midnight. Id. Finally, he pointed out that Officer LaVigne stopped appellant’s vehicle in spite of the fact that he had no physical description of the burglary suspects — the officer did not know the age, race, ethnicity, or any physical characteristics of those whom he sought, nor did he appear to know the gender of the occupants of the car until after he stopped appellant’s vehicle. Id. at 758. In sum, Justice Quinn suggested:

the officer acted as he did because the car was in a neighborhood at an hour when he expected to see some but not many cars, because the car had two ‘people’ in it, because the car was heading in the same polar direction as the two males who were seen running away sometime earlier that night (how much earlier was and is unknown), and because the car was in the same neighborhood where someone reported an attempted burglary that occurred at sometime or another that night.

Id. at 754. The dissent concluded that these circumstances presented nothing more than an officer acting on a hunch and stopping the first vehicle that he saw. Id.

The majority found special significance in our previous observation that reasonable suspicion is a “lower standard” than the traditional showing of probable cause. See id. at 747 (quoting Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997)). However, the majority’s opinion never compared precedent in which the “lower standard” of reasonable suspicion was found to have a floor. For example, in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), a unanimous Supreme Court indicated that a vague suspicion was not enough to justify a Terry stop. In Brown, officers observed the defendant and another man walking in opposite directions away from one another in an alley located in an area frequented by drug users. Id. at 48-9, 99 S.Ct. at 2639. Although the officers never saw the two men meet, one officer testified that he believed the two men had been together or were about to meet when the officers appeared. Id. The officers then stopped the defendant and asked him to identify himself and explain what he was doing there. Id. The officers articulated the following reasons to justify the stop under Terry: (1) the defendant was walking in an area that had a “high incidence of drug traffic”; (2) he “looked suspicious”; and (3) he had not been seen in that area previously by the officers. Id. In holding that the stop was an unreasonable seizure under the Fourth Amendment, the Court recognized that a person may be stopped only if the officers have a “reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” Id. at 51, 99 S.Ct. at 2641 (emphasis added). The Court emphasized that there was “no indication in the record that it was unusual for people to be in the alley” and “[t]he fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.” Id. at 52, 99 S.Ct. at 2641. Thus, the Brown, Court was unwilling to allow the officers’ experience in law enforcement and knowledge of the neighborhood to act as a substitute for specific, objective facts which might implicate the defendant in criminal conduct.

Appellant was stopped after he was observed driving through a neighborhood where a number of burglaries had previously occurred and where another had been reported. The Court of Appeals concluded that 'Officer LaVigne’s experience in law enforcement supplemented the lack of objective facts and allowed him to make a deduction from the circumstances that appellant was involved in the burglary. The facts of this case are close enough to warrant scrutiny of the appellate court’s decision. Appellant’s Petition for Discretionary Review should be granted, and the issue briefed and argued by both sides. I dissent.

      . Certainly only a fairly modest degree of suspicion will be sufficient to justify an investigative detention under Terry. For instance, in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), relied on extensively by the Court of Appeals, Border Patrol agents did not observe any criminal conduct on the part driver of the vehicle that they stopped. However, in concluding that the officers drew valid deductions from the facts presented, the Court emphasized .the extent of the investigation that preceded the stop. In Cortez, agents discovered, on numerous occasions, foot tracks in a remote area of the Arizona desert leading from the Mexican border to a specific stretch of highway. Officers also noted that one recurring shoeprint bore a distinctive design, which the agents surmised belonged to a guide who trafficked in illegal aliens. Moreover, the officers noted that the tracks led into and over obstacles that could have been avoided in daylight, leading officers to conclude that the groups generally traveled at night. Also distinctive was the pattern the tracks would follow' — the group would always come within 50 to 75 yards of the highway, then turn right and walk eastward, parallel to the road. Then, at roughly the same spot each time, the tracks would turn north and disappear onto the highway. The officers concluded that the aliens were likely being picked up by a vehicle approaching from the east, and then, after the pickup, returning from the direction from which it came. Based on this information, officers set up surveillance at a point where they could observe traffic coming and going from the pickup point. They also chose a night and time which their investigation and experience led them to believe would be the most likely time for aliens to cross the border. During the time frame officers anticipated the pickup would be made, they observed only one vehicle large enough to carry a group of people pass them going west and, a short time later, return to the east. The interval between when the appellant’s vehicle initially passed the officers and when the officers spotted the truck returning from the pickup point was almost exactly the amount of time the agents had estimated it would take to make a round-trip to the pickup point. The agents therefore stopped the appellant's vehicle and discovered illegal aliens hiding inside. The Supreme Court concluded that on the facts presented, experienced Border Patrol agents could reasonably surmise that appellant’s vehicle was engaged in criminal activity. Id. at 422, 101 S.Ct. at 697. The Court continued to emphasize, however, that all of the officers’ deductions were drawn from a series of "objective facts” that, when combined to form a complete picture, suggested a distinct pattern of criminal behavior on the part of a particular trafficker. See id. at 419-21, 101 S.Ct. at 696. Thus, the quantum of cause necessary to stop the vehicle was provided when the truck (1) was of a size to meet the officers' predetermined specifications; (2) was seen traveling to and from what the officers had determined was a pickup point for aliens crossing the border; (3) was driving at a time when officers determined was most likely for such a crossing; and (4) was observed returning at almost the exact time estimated by the officers to drive to the location and commit the crime. These facts allowed an experienced Border Patrol agent to deduce that the vehicle was involved in criminal activity.