                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   April 19, 2012 Session

             IN RE THE MATTER OF CHEETAH LOUNGE, INC., DBA
            “THE CHEETAH LOUNGE” ET AL. v . SARASOTA COUNTY

                 Appeal from the Chancery Court for Hamilton County
                 No. 2011-IDA-1    W. Frank Brown, III, Chancellor


                 No. E2011-02027-COA-R3-CV-FILED-MAY 31, 2012


After a subpoena duces tecum was served on Chattanooga attorney Scott D. Bergthold (“the
Attorney”) requiring him to appear for a deposition in Hamilton County and to produce
documents regarding ordinances enacted by Sarasota County, Florida (“the County”)
pertaining to “adult businesses,” he filed this action as a motion for a protective order
pursuant to the Uniform Interstate Depositions and Discovery Act, Tenn. Code Ann. § 24-9-
201, et seq. (Supp. 2011). The Attorney asserted, on behalf of himself and the County, that
the information sought was protected by the attorney-client privilege and the work-product
doctrine and that the discovery was overly broad and unduly burdensome. The trial court
granted the protective order and quashed the subpoena. The subpoena had been issued and
served at the request of Cheetah Lounge, Inc., dba “The Cheetah Lounge” and Sarasota
Eateries, LLC (“the Adult Clubs”) as a part of their discovery in a Florida case wherein they
challenged the constitutionality of the subject ordinances. The Adult Clubs appeal. While
this matter was pending oral argument before us, the County filed motions asking that this
Court consider dual facts, i.e., (1) that, following the entry of the trial court’s judgment, the
Florida court dismissed the underlying case and (2) that court later denied the Adult Clubs’
motion to rehear. We directed the parties to brief the issue of whether this ancillary matter
is rendered moot by the dismissal of the underlying action. We now hold that this case is
moot. Accordingly, this appeal is dismissed.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed;
                                   Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Luke Lirot, Clearwater, Florida, and Matthew A. Grossman, Knoxville, Tennessee, for the
appellants, Cheetah Lounge, Inc., dba “The Cheetah Lounge,” and Sarasota Eateries, LLC.
Stephen S. Duggins and Scott D. Bergthold, Chattanooga, Tennessee, for the appellees,
Sarasota County, Florida, and Scott D. Bergthold.

                                         OPINION

                                              I.

        As used herein, the term “adult businesses” means establishments that feature nude
female dancers for the viewing entertainment of their patrons. The Adult Clubs are two such
establishments. The County contracted with the Attorney in 2006 shortly after the Adult
Clubs filed an action against the County in a Florida federal court challenging the
constitutionality of the County’s ordinances then in effect that regulated adult businesses.
The contract is part of the record in this case. It defines the “Scope of Services” as follows:

              The [Attorney] will review existing and proposed provisions of
              the County Code relating to regulation of sexually oriented
              businesses, as previously provided to the [Attorney] by the
              County Attorney’s office (collectively, the “Legislation”). The
              [Attorney] will advise the County Attorney as to any provisions
              of the Legislation for which amendments or additions should be
              considered in order to enhance the County’s ability to defend the
              legality of the Legislation, or in order to enhance the County’s
              goals of reducing the secondary effects of sexually oriented
              businesses. The [Attorney] will draft proposed amendments to
              the Legislation, or draft an entirely new ordinance or ordinances,
              and will provide a written report, including draft amendments
              and/or draft ordinance(s), within thirty (30) days from the date
              of this agreement.

The Attorney also agreed to attend “a reasonable number of conferences” to discuss the
recommendations and respond to questions. The Attorney appeared for one such conference
before the full Sarasota County Board of Commissioners on November 26, 2007, to discuss
proposed regulations. The proposed regulations became Ordinances 2007-100 and 2007-101
(“the New Ordinances”). The Adult Clubs thereafter filed an action in a Florida state court
(“the Florida Case”) challenging the constitutionality of the New Ordinances.

        As part of their discovery in the Florida Case, the Adult Clubs served the Attorney
with a subpoena duces tecum issued by the clerk and master of the Hamilton County
Chancery Court compelling him to appear for a deposition at his office in Chattanooga. As
identified in an exhibit to the subpoena, he was further required to produce “all documents

                                              -2-
upon which Deponent relied or purported to rely in drafting and recommending [the New
Ordinances ] for approval . . . .”

         In the case now before us, the procedure invoked by the Adult Clubs of compelling
a deposition in Tennessee for use in a “foreign jurisdiction” by subpoena issued by a
Tennessee Court, is expressly authorized by Tenn. Code Ann. §§ 24-9-201 through 207 (“the
Act”) as part of the Uniform Interstate Depositions and Discovery Act. The Act allows the
deponent to apply “to the court for a protective order or to enforce, quash, or modify a
subpoena.” Tenn. Code Ann. § 24-9-206. The application must be to “the court in the
county in which discovery is to be conducted.” Id. The Attorney, on behalf of himself and
Sarasota County, filed this action as a “motion for protective order and to quash subpoena
and duces tecum directed to [the Attorney].” Among the numerous grounds alleged for
relief, the motion asserts that “[t]he subpoena . . . improperly seeks disclosure of attorney
work product or privileged information.” The filing of the motion stayed compliance with
the subpoena pending the court’s ruling on the motion. Tenn. R. Civ. P. 45.07 (“The timely
filing of a motion to quash or modify obviates the need for compliance with the subpoena
pending further order of the court.”).

       After extensive briefing by both sides, the trial court heard argument on the Attorney’s
motion on July 26, 2011. The court took the matter under advisement and later entered an
order granting the motion on the grounds of privilege and work product. The court also
found that the discovery was unduly burdensome because much of the documentation sought
appeared to be available through a public records request directly to the County, which the
Adult Clubs had not pursued. The court ordered that, absent an order of a higher court, the
Adult Clubs would be prohibited from taking the deposition of the Attorney.

                                              II.

        The Adult Clubs filed a timely notice of appeal. After we acquired jurisdiction of the
case, the County filed a motion pursuant to Tenn. R. App. P. 14 asking this Court “to
consider the post-judgment fact of summary judgment being entered in the underlying
litigation in Sarasota County, Florida.” The County asserted that “[c]onsideration of the
summary judgment . . . is appropriate because it renders the present appeal moot . . . .” We
filed an order on February 8, 2012 reciting that the

              motion to consider . . . the post-judgment fact of summary
              judgment being entered in favor of the [County] in the
              underlying litigation in the State of Florida is DEFERRED to
              the panel assigned to hear this case. . . . The parties are directed



                                              -3-
              to address at oral argument the possible mootness of this appeal
              in light of the apparent resolution of the Florida litigation . . . .

(Capitalization in original.) Before the oral argument was entertained by the Court, the
County filed a second motion asking

              this Court to consider the post-judgment fact that the Florida
              trial court has denied [the Adult Clubs’] motion to rehear the
              complete summary judgment entered against [the Adult Clubs].
              Consideration of the summary judgment and the February 2,
              2012 rehearing denial in Florida is appropriate because it
              renders the present appeal moot. . . . Moreover, it is especially
              on point because the motion for rehearing was based in part on
              the Adult [Clubs’] argument that they should have been allowed
              to take [the Attorney’s] deposition before summary judgment
              was entered against them.

We again deferred a ruling on the merits of the motion to the panel assigned to hear the
argument and directed the parties to address the issue of whether the case is now moot.

                                              III.

       The Adult Clubs present a host of imaginative issues, many of which invoke the state
and federal constitutions, and all of which boil down to whether the trial court erred in (1)
granting the motion for protective order and (2) quashing the subpoena. The County and the
Attorney lead off with the issue of whether this case is now moot. The Adult Clubs
addressed this issue in their reply brief.

        We will first address the County’s motions. The rule that allows us to consider, in our
discretion, certain post-judgment facts is Tenn. R. App. P. 14. Subsection (a) of Rule 14
states, in pertinent part:

              The Supreme Court, Court of Appeals, and Court of Criminal
              Appeals on its motion or on motion of a party may consider
              facts concerning the action that occurred after judgment.
              Consideration of such facts lies in the discretion of the appellate
              court. While neither controlling nor fully measuring the court’s
              discretion, consideration generally will extend only to those
              facts, capable of ready demonstration, affecting the positions of
              the parties or the subject matter of the action such as mootness,

                                               -4-
              bankruptcy, divorce, death, other judgments or proceedings,
              relief from the judgment requested or granted in the trial court,
              and other similar matters. Nothing in this rule shall be
              construed as a substitute for or limitation on relief from the
              judgment available under the Tennessee Rules of Civil
              Procedure or the Post-Conviction Procedure Act.

(Emphasis added.) The facts we are asked to consider are “capable of ready demonstration”
– they are part of the file of a court of record. The Adult Clubs do not dispute that the trial
court in the Florida Case entered summary judgment against them and denied their motion
to rehear. Furthermore, the dismissal of the Florida Case clearly “affect[s] . . . the subject
matter of the action” because it bears on the possible “mootness” of the present action.
Accordingly, we grant the County’s motion to consider the post-judgment facts of the
dismissal of the Florida Case and the denial of the Adult Clubs’ motion to rehear.

       We have defined the concept of mootness as follows:

              A moot case is one which has lost its character as a present, live
              controversy. A case will generally be considered moot when the
              prevailing party will be provided no meaningful relief from a
              judgment in its favor. To avoid being dismissed as moot, cases
              or issues must be justiciable not only when a case is first filed
              but must remain justiciable throughout the entire course of the
              litigation, including the appeal.

County of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996)(citations
omitted).

       The Adult Clubs agree that the above standard is the correct gauge of mootness.
However, they seek to avoid the draconian effect of its application here by pointing out that
they have appealed the summary judgment in the Florida case. Even if we assume that the
Adult Clubs are correct in their assertion that the Florida court acted prematurely in granting
summary judgment while discovery was still pending, that does not mean that they should
be allowed discovery while their appeal of the Florida Case is pending. In essence, the Adult
Clubs are arguing that when a case is dismissed short of a trial on the merits, discovery
should continue unless and until the dismissal is affirmed on appeal.1 The Adult Clubs offer
no authority to support their expansive view of discovery.


       1
        Counsel for the Adult Clubs conceded at oral argument that they would not be permitted to
undertake discovery in the state of Florida once the summary judgment was granted and the appeal
commenced.

                                               -5-
        We hold that the dismissal of the Florida Case on summary judgment renders the
present case moot notwithstanding the appeal of the summary judgment. We further hold
that because of the possibility of a reversal of the judgment in the Florida Case, and because
we have not addressed the merits of the trial court’s judgment in the present case, our
judgment does not preclude the Adult Clubs from seeking discovery through a new subpoena
in the event the judgment in the Florida Case is reversed or vacated on appeal and that case
remanded to the Florida trial court for further proceedings.

                                             IV.

      This appeal is dismissed. Costs on appeal are taxed to the appellants, Cheetah
Lounge, Inc., dba “The Cheetah Lounge,” and Sarasota Eateries, LLC. This case is
remanded, pursuant to applicable law, for the collection of costs assessed by the trial court.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




                                             -6-
