While waiting to see if the county will seek certiorari, which is an appeal to the higher court to review the decision of a lower court, Melinda Keeling and her attorney, Jerry Gonzalez, issued a motion to seek discovery in aid of collection of judgement. This means Keeling and Gonzalez would like to question county officials to gather evidence to bring forth if Melinda Keeling v. Coffee County is heard by the Tennessee Supreme Court.
Coffee County refused to submit to any discovery, according to the motion. This is not the end of the road for the ask, however.
Tennessee Rules of Civil Procedure (TRCP) states, “If an appeal has been taken from a judgment…the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the trial court. In such case the party who desires to perpetuate the testimony may make a motion in the trial court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in that court.”
The rules also states, “If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken.”
In law, a deposition in is the process of giving sworn evidence.
Gonzalez believes the county is delaying justice by failing to object at trial and waiting to petition on certiorari, which was Coffee County Attorney Bob Huskey’s recommendation to the county after their lost the September appeal. Due to the loss, the damages of the case have escalated to over $1 million, which will be paid for by county taxpayers.
“Taking a deposition of a person knowledgeable of the assets of Coffee County so as to allow execution of the judgment once the mandate from the Court of Appeals is issued would help forestall the purposeful delay of justice by Coffee County,” Gonzalez wrote in the motion.
Keeling and Gonzalez would like to question Coffee County Mayor Gary Cordell regarding county assets and the possibility of increasing property taxes to pay for the judgement pursuant to Tennessee Code Annotated 5-9-312. If the county refuses to pay the judgements, TCA 5-9-313 stats the plaintiff can force the county to raise property taxes to pay their settlement.
The second person named for questioning is John Marchesoni, a county trustee and acting treasurer for the county.
“There is no justifiable reason for further delay,” Gonzalez wrote. “On the minuscule chance that the Tennessee Supreme Court will grant a writ of certiorari and even if the Tennessee Supreme Court reverses the Court of Appeals, taking a deposition will cause no harm to the county. On the contrary, Plaintiff Keeling will continue to be harmed by the county’s efforts to purposefully delay the execution of the lawfully obtained judgments.”
The county has until Nov. 17 to file for certiorari. At best, Gonzalez estimates the Tennessee Supreme Court could approve or deny the request in February 2019. Once the supreme court accepts or denies the case, the county has 30 days to respond.
The history of Melinda Keeling v. Coffee County
Keeling was employed by the Coffee County Department of Codes and Safety from 2006 to 2010. She filed a claim under the Tennessee Public Employee Political Freedom Act (PEPFA) after her supervisor, Glenn Darden, fired her.
She was dismissed May 27, 2010. Darden retired in September 2015.
Keeling claims she was wrongly fired after being disciplined for bringing concerns to at-the-time mayor David Pennington. Her concerns centered around Darden being unavailable in the office to help the public.
PEPFA states that “no public employee shall be prohibited from communicating with and elected official for any job-related purpose whatsoever.”
Keeling filed suit in the U.S. District Court for the Eastern District of Tennessee. In 2013, the U.S. District Court dismissed all claims, declining to exercise further jurisdiction.
Keeling then refiled the claims in Coffee County Circuit Court. The outcome was very different — the jury found in favor of Keeling on Jan. 12, 2017 and she was awarded $30,000.
An order by the Circuit Court of Coffee County, filed on May 1, 2017, states the plaintiff is entitled to back-pay damages and front-pay damages, bringing the total amount to $490,000.
Since then, interest and legal fees that more than doubled that settlement to around $1.078 million.
If the county seeks certiorari, the cost of the settlement will rise.
“If the county seeks cert I will argue that the petition is frivolous. Since I would already get any attorney fees associated with the cert petition by statute, I would ask for sanctions in addition to my attorney fees. What those sanctions would be, if awarded, is anyone’s guess,” Gonzalez said.
“Additionally, if the Supreme Court accepts review, which I highly doubt, Ms. Keeling could also appeal the denial of fringe benefits associated with her front pay award. That would be about $23,388 which, if awarded, would be tripled by statute to an additional $70,164. Of course, everything continues to accrue interest at the rate of 6.25 percent from the date of the original judgment and I would also get attorney fees for my time in front of the Supreme Court,” Gonzalez added.
If the court denies certiorari, Gonzalez will move for a life of the stay of execution before the trial judge and immediately start executing on the judgement, meaning Keeling’s payment wouldn’t be delayed if Gonzalez’s motion is accepted. Gonzalez will seek payment from county banks, send garnishment notices to Bonnaroo and other entities that owe money to the county, he explained.
“I will also ask the judge to order the county to raise property taxes in an amount sufficient to pay the entire judgment at once. If you divide the judgment by the number of properties in the county subject to property tax, you would get an idea of the one-time assessment everyone would have to pay,” Gonzalez said.