IN THE CIRCUIT COURT OF SHELBY COUNTY, TENNESSEE

FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS

JANET DOE;
individually and as class
representatives for all similarly
situated claimants,

Plaintiffs,

vs. No. CT-003516-14

Div. IV
CITY OF MEMPHIS, TENNESSEE,

Defendant.

CITY OF MEMPHIS’ UNOPPOSED MOTION FOR PERMISSION

TO APPLY FOR INTERLOCUTORY APPEAL PURSUANT TO
TENNESSEE RULE OF APPELLATE PROCEDURE 9

Defendant City of Memphis (“City”), by and through undersigned counsel, file this

Unopposed Motion requesting permission from this Honorable Court for entry of an order granting

it permission to apply to the Tennessee Court of Appeals for an interlocutory appeal of the this

Court’s Order denying the City’s Motion for Summary Judgment entered on August 16, 2023 (the

“August 16, 2023 Order”), and for entry of an order staying the proceedings of this matter pending

resolution of the interlocutory appeal process.

In particular, the City is seeking interlocutory review of the following rulings in the August

16, 2023 Order: (1) the Court’s ruling that this case falls under an exception to public duty doctrine

immunity, because the City assumed a special and affirmative duty to the Plaintiff by virtue of the

SAK; and (2) the Court’s ruling that the Plaintiff’s action is not barred as untimely under the statute

of repose set forth in T.C.A. § 29-20-305(b).

 As explained below, interlocutory review of these potentially dispositive issues is

warranted so as to “prevent needless, expensive, and protracted litigation”, Tenn. R. App. P.

9(a)(1), especially in light of the class action status of this suit.1 Additionally, this Court’s ruling

that the public duty doctrine immunity does not apply is directly contrary to an Order entered just

months ago (on March 22, 2023), in another division of this same Court, holding that the public

duty immunity doctrine does apply. These conflicting Orders by different divisions in the same

Circuit Court illustrate “the need to develop for a uniform body of law” on this issue, providing

further grounds for interlocutory review. Tenn. R. App. P. 9(a)(3). In the absence of interlocutory

review, the conflicting Orders will potentially be subject to multiple appeals at different times,

creating the possibility of inconsistent rulings and uncertainty in future litigation, as well as in

ongoing and future police investigations.

For these reasons and those set forth below, interlocutory review is warranted pursuant to

Tenn. R. App. P. 9.

BRIEF BACKGROUND

The original Plaintiffs filed the original Class Action Complaint on August 14, 2014.

Subsequently, Plaintiffs filed their Amended Class Action Complaint on September 23, 2014. The

current and only remaining Plaintiff, Janet Doe was added as a Plaintiff on October 16, 2015, on

the filing of the Second Amended Complaint.2

Recently, on August 16, 2023, the Court entered a series of Orders addressing all of the

parties pending Motions, including the City’s Motion for Summary Judgment. In its Order denying

1
Moreover, the City is appealing by right this Court’s Order granting the Plaintiff’s Motion to Certify a Class, pursuant
to T.C.A. § 27-1-125. It makes sense then to also allow the parties to address the determinative legal issues on appeal
that might result in an end to this litigation.
2
The original Plaintiffs were Meaghan Ybos, Madison Graves, and Rachel Johnson, but Plaintiff Ybos’s claims were
dismissed by the Court’s December 17, 2017 Order. Ms. Johnson and Ms. Graves voluntarily dismissed their
complaints, respectively on March 8, 2021 and May 25, 2021, leaving Ms. Doe as the sole Plaintiff.

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the City’s motion for summary judgment, the Court made the following ruling with respect to the

applicability of immunity under the public duty doctrine:

The Court also finds that in accordance with prior rulings the City of Memphis is
not immune in these cases. There is no absolute immunity to the City under
discretionary functions, and the City does have a special relationship with the
potential class members. The City did not treat the women who were sexual assault
victims as though they were victims of any other crime. The City invited them to
submit to sexual assault kits, a very intimate and personal invasive procedure. The
City involved them in the City’s duty to the public with an expectation that the City
would do more for them. The City would test their kits for evidence of crime and
would identify their perpetrators. This is beyond anything that the City does with
any other crime victims; therefore, the City does have a special relationship with
these parties.

August 16, 2023 Order at Exhibit A. The Court also ruled that the Plaintiff’s action was not barred

by the statute of repose set forth in T.C.A. § 29-20-305(b), stating as follows:

The Court finds that Plaintiff Doe is a proper party who comes within the statute of
limitations and the statute of repose. By this ruling, the Court is not attempting to
extend the statute of repose.

(Id.).

The City now files the instant Motion for Permission to Seek Interlocutory Appeal on these

rulings and for a Stay of Proceedings.

LEGAL STANDARD

Interlocutory appeals are governed by Rule 9 of the Tennessee Rules of Appellate

Procedure. Pursuant thereto, the trial court may consider any one or more of the following factors:

(1) the need to prevent irreparable injury, giving consideration to the severity of the
potential injury, the probability of its occurrence, and the probability that review upon entry
of final judgment will be ineffective;

(2) the need to prevent needless, expensive, and protracted litigation, giving
consideration to whether the challenged order would be a basis for reversal upon entry of
a final judgment, the probability of reversal, and whether an interlocutory appeal will result
in a net reduction in the duration and expense of the litigation if the challenged order is
reversed; and

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 (3) the need to develop a uniform body of law, giving consideration to the existence of
inconsistent orders of other courts and whether the question presented by the challenged
order will not otherwise be reviewable upon entry of final judgment.

Tenn. R. App. P. 9(a). These factors neither control nor fully measure the Courts’ discretion, and

only indicate “the character of the reasons that will be considered[.]” See id.3

As will be shown, application of these factors to the instant case favors interlocutory review

of this Court’s August 16, 2023 Order.

LAW AND ARGUMENT

1. Interlocutory review is necessary to develop a uniform body of law in light of

inconsistent orders from other courts.

An interlocutory appeal is necessary here to develop a uniform body of law in Tennessee,

given the existence of inconsistent orders of other courts. Specifically, this Honorable Court ruled

that this case falls under an exception to public duty doctrine immunity,4 because the City assumed

a special and an affirmative duty to the Plaintiff by virtue of the SAK. This ruling directly conflicts

with the Order entered on March 22, 2023, in Division VII of Circuit Court, which held that the

SAK does not give rise to such a relationship and affirmative duty, and which further held that the

City was immune from claims under the public duty doctrine.5

Where, as here, there are inconsistent orders from other courts, interlocutory review is

particularly appropriate. Rule 9(a)(3) (interlocutory review necessary “to develop a uniform body

3
If a trial court is of the opinion that an order is appealable, “the trial court shall state in writing the reasons for its
opinion” and “shall specify: (1) the legal criteria making the order appealable, as provided in subdivision (a) of this
rule; (2) the factors leading the trial court to the opinion those criteria are satisfied; and (3) any other factors leading the
trial court to exercise its discretion in favor of permitting an appeal.” Id.
4
The public duty doctrine shields a municipality from suits for injuries that are caused by the public employee’s breach
of a duty owed to the public at large. Ezell v. Cockrell, 902 S.W.2d 394, 397 (Tenn. 1995). To overcome the doctrine,
the Plaintiff must show a “special relationship”, which can only occur if: “1) officials, by their actions, affirmatively
undertake to protect the plaintiff, and the plaintiff relies upon the undertaking; 2) a statute specifically provides for a
cause of action against an official or municipality for injuries resulting to a particular class of individuals, of which the
plaintiff is a member, from failure to enforce certain laws; or 3) the plaintiff alleges a cause of action involving intent,
malice, or reckless misconduct.” Ezel, 902 S.W.2d at 402.
5
See pp. 17 and 20 of the Division VII March 22, 2023 ruling, a copy of which is attached as Ex. B hereto, together
with a copy of the Order on Plaintiff’s Motion to Alter or Amend, entered on July 14, 2023, attached as Ex. C hereto.

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of law, giving consideration to the existence of inconsistent orders of other courts”). See also State

v. Hall, 2003 WL 22964300, at *3 (Tenn. Ct. App. Dec. 16, 2003) (finding “that there is need for

a ‘uniform body of law’ reconciling any ‘inconsistent orders of other courts’ in regard to the oral

orders of judges within a Juvenile court setting, thus justifying an interlocutory appeal”). If this

Court does not certify the August 16, 2023, Order for interlocutory appeal, then the conflicting

Orders will potentially be subject to multiple appeals at different times, creating the possibility of

inconsistent rulings and uncertainty in future litigation. Indeed, unless the conflict between the two

Orders is resolved on appeal and the law uniformly established soon, the legal status of SAKs

collected both in prior and in future investigations is unresolved and therefore will create

uncertainty in ongoing and future investigations. Accordingly, interlocutory review is necessary.

Tenn. R. App. P. 9(a)(3). See also State v. Harrison, 270 S.W.3d 21, 30 (Tenn. 2008) (affirming

interlocutory review to develop a uniform body of law, in light of the lack of clear authority on

procedure for discovery relating to pretrial competency determinations).

2. Interlocutory review will prevent needless, expensive, and protracted litigation.

Interlocutory review is further warranted so as to “prevent needless, expensive, and

protracted litigation.” Tenn. App. P. 9(a)(1). Resolution of either question in favor of the City

would be dispositive, and therefore “the challenged order would be a basis for reversal upon entry

of a final judgment.” Id. While the City respects this Court’s ruling, another Court considered the

same issue and ruled differently. Accordingly, the “probability of reversal” is more likely than in

typical cases, further warranting interlocutory review. Tenn. App. P. 9(a)(1).

The Court’s ruling on TGTLA’s 12-month statute of repose T.C.A. § 29-20-305(b) is

similarly entitled to interlocutory review, given that resolution of the issue in favor of the City

would also be dispositive. Courts frequently grant permission for interlocutory appeals involving

a statutory time bar to “prevent needless, expensive, and protracted litigation.” See e.g. Shriver,

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By & Through Watkins v. Onan Corp., 1988 WL 67162, at *1 (Tenn. Ct. App. June 30, 1988)

(granting permission for interlocutory appeal regarding applicability of statute of limitations

appeal “in order to prevent needless, expensive and protracted litigation.”).

Moreover, given that the City is appealing by right this Court’s Order granting the

Plaintiff’s Motion to Certify a Class pursuant to T.C.A. § 27-1-125,6 it only stands to reason that

these potentially dispositive issues should be addressed on appeal as well. See e.g. Damron v.

Media Gen., Inc., 3 S.W.3d 510, 511 (Tenn. Ct. App. 1999) (reviewing trial court’s class

certification decision along with other dispositive issues on interlocutory appeal under Tenn. R.

App. P. 9). Thus, an interlocutory appeal could prevent needless, expensive and protracted

litigation, and “will result in a net reduction in the duration and expense of the litigation if the

challenged order is reversed”, especially given that this is a class action. Tenn. R. App. P. 9(a).

3. The need to prevent irreparable injury also supports interlocutory review.

Although either of the above factors would be sufficient, interlocutory review is also

justified to prevent possible irreparable injury. Specifically, as noted above, the conflicting Court

decisions create uncertainty regarding the legal status and legal effect of SAKs, which has been a

very useful tool in investigations. The uncertainty affects future litigation and ongoing and future

investigations. Interlocutory review and resolution of this question will provide clarity and prevent

possible irreparable harm. Tenn. R. App. P. 9(a)(2).

4. Stay of proceedings.

Additionally, in the event that permission to apply for an interlocutory appeal is granted,

the City also seeks a stay of the proceedings to ensure that the matter below does not continue to

6
That statute provides that “[t]he court of appeals shall hear appeals from orders of trial courts granting or denying class
certification under Rule 23 of the Tennessee Rules of Civil Procedure, if a notice is filed within ten (10) days after entry
of the order.” T.C.A. § 27-1-125.

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be litigated. “The decision to grant or deny a motion to stay proceedings is entrusted to the sound

discretion of the trial judge.” Strong v. Baker, 2008 WL 859086, at *4 (Tenn. Ct. App. 2008)

(citing Sanjines v. Ortwein and Assocs., P.C., 984 S.W.2d 907, 909 (Tenn. 1998)). When

considering whether to grant a motion to stay, courts determine on a case-by-case basis “whether

a stay would promote judicial economy and the conservation of judicial resources by reducing the

duplication of legal issues to be litigated.” Sanjines, 984 S.W.2d at 911. The City submits that a stay

of proceedings during the interlocutory appeal would promote judicial economy and the conservation

of judicial resources. Further, as noted above, the City intends to appeal the class certification

decision pursuant to T.C.A. § 27-1-125, which provides that “[a]ll proceedings in the trial court

shall be automatically stayed pending the appeal of the class certification ruling.”

CONCLUSION

For the above stated reasons, the City respectfully requests permission to apply to the

Tennessee Court of Appeals for an interlocutory appeal and for entry of an order staying the

proceedings of this matter before this Court pending resolution of the interlocutory appellate

process.

Respectfully submitted,

s/Lani D. Lester
JON P. LAKEY (BPR# 16788)
JOHN J. COOK (BPR# 17725)
LANI D. LESTER (BPR# 35226)
BURCH, PORTER & JOHNSON, PLLC
130 N. Court Avenue
Memphis, Tennessee 38103
Tel: (901) 524-5000
Fax: (901) 524-5024
Email: jlakey@bpjlaw.com
jcook@bpjlaw.com
llester@bpjlaw.com

and

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 ROBERT D. MEYERS (BPR #12187)
GLANKLER BROWN, PLLC
6000 Poplar Avenue, Suite 400
Memphis, Tennessee 38119
Tel: (901) 525-1322
Fax: (901) 525-2389
Email: rmeyers@glankler.com
Attorneys for Defendant
City of Memphis, Tennessee

CERTIFICATE OF CONSULTATION

Pursuant to Local Rule 5(H) of the Rules of the Circuit Court of Tennessee for the Thirtieth

Judicial District at Memphis, Shelby County, Tennessee, I certify that on behalf of my client,

defendant City of Memphis, I consulted with counsel for the plaintiff before filing the Motion.

Counsel for the plaintiff states that while Plaintiff does not consent to the Motion, for the sake of

judicial efficiency Plaintiff is not opposing the Motion. In not opposing this Motion, Plaintiff’s

counsel wanted to make it clear that Plaintiff does not agree that the City is entitled to a reversal of

the trial court’s denial of the City’s Motion for Summary Judgment.

/s/ Lani D. Lester

LANI D. LESTER

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 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing filing has been served upon the following

electronically and via U. S. Mail, postage prepaid, this 16th day of August, 2023:

Daniel O. Lofton, Esq. Gary K. Smith, Esq.

Paul Forrest Craig, Esq.
44 N. Second St., Ste. 600
Memphis, TN 38103
dlofton@craigandloftonlaw.com
pfcraig@bellsouth.net
Attorneys for Plaintiffs
Phillip M. Campbell, Esq.
1770 Kirby Pkwy., #427
Memphis, TN 38138
gsmith@garyksmithlaw.com
pcampbell@garyksmithlaw.com
Attorneys for Plaintiffs

/s/ Lani D. Lester

LANI D. LESTER

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