When defendant filed a petition to dismiss a defamation case under the Tennessee Public Participation Act (TPPA), and plaintiff failed to respond by “establish[ing] a prima facie case for each essential element of the claim in the legal action,” dismissal was affirmed. Further, exclusive jurisdiction of the appeal of the TPPA dismissal rested in the Court of Appeals. In Nandigam Neurology, PLC v. Beavers, No. M2020-00553-COA-R3-CV (Tenn. Ct. App. June 18, 2021), plaintiffs neurology clinic and neurologist filed this suit against defendant after defendant left a negative review of plaintiff doctor online. After non-suiting the first action, this case was filed in general sessions court, wherein plaintiffs alleged defamation and false light invasion of privacy. Defendant filed a petition to dismiss the case in its entirety, asserting first that plaintiffs failed to state a claim because they “failed to plead the substance of any statement over which they complained,” and that the statement “was not defamatory because it expressed only opinions and rhetorical hyperbole.” In addition, defendant argued that this case should be dismissed pursuant to the TPPA because the “review was a statement made in connection with a matter of public concern and that Plaintiffs’ lawsuit ‘qualifies as one filed in response to defendant’s exercise of the right to free speech.’” Defendant’s petition also asked that she be awarded costs, attorney’s fees, and sanctions pursuant to the TPPA. Defendant supported her petition with a personal affidavit stating that “her Yelp! review was based on her personal observations and that she had no reason to believe any of the statements in the review were false.”
Plaintiffs responded to the petition by arguing that Tenn. Code Ann. § 20-17-101 et. seq., known at the TPPA, could not apply here because it was a rule of civil procedure, which is not applicable in sessions court. Plaintiffs, however, “did not address the substance of Defendant’s argument nor did Plaintiffs offer any countervailing proof in response to Defendant’s affidavit.”
The general sessions court held a hearing on February 6, 2020, where plaintiffs continued to rely “solely on the theory that the TPPA is a rule of civil procedure that does not apply in general sessions court.” Six days after the hearing, plaintiffs filed a supplemental response where they argued for the first time that they “could prove a prima facie case for defamation and false light,” and they attached the doctor’s affidavit in support. The sessions judge ruled the following day, dismissing the claims pursuant to the TPPA and plaintiffs’ failure to respond to the petition to dismiss with any facts. The order, however, did not resolve defendant’s request for costs, attorney’s fees and sanctions.
Plaintiffs appealed to the circuit court, wherein defendant raised the same reasons for dismissal. In addition, defendant argued that jurisdiction of an appeal of a TPPA petition rested solely in the Court of Appeals. The circuit court agreed that it lacked subject matter jurisdiction, and this appeal was taken up by the Court of Appeals, where the trial court’s ruling was affirmed.
The TPPA is Tennessee’s anti-SLAPP statute, with SLAPP standing for “’strategic lawsuits against public participation,’ meaning lawsuits which might be viewed as ‘discouraging the exercise of constitutional rights, often intended to silence speech in opposition to monied interests rather than to vindicate a plaintiff’s right.’” (internal citation omitted). The Court explained:
Plaintiffs in SLAPP suits do not intend to win but rather to chill a defendant’s speech or protest activity and discourage opposition by others through delay, expense, and distraction. In fact, defendants win eighty to ninety percent of all SLAPP suits litigated on the merits. While the case is being litigated in the courts, however, defendants are forced to expend funds on litigation costs and attorney fees and may be discouraged from continuing their protest activities. The idea is that the SLAPP plaintiff’s goals are achieved through the ancillary effects of the lawsuit itself on the defendant, not through adjudication on the merits. … [Anti-SLAPP] statutory schemes commonly provide for expedited judicial review, summary dismissal, and recovery of attorney fees for the party who has been ‘SLAPPed.’
(internal citations and quotations omitted). The TPPA (Tenn. Code Ann. § 20-17-101 et. seq.) was passed on July 1, 2019.
Under the TPPA, if a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action. The TPPA defines the exercise of the right of free speech as a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution of the Tennessee Constitution. A matter of public concern under the TPPA can include…an issue related to health or safety, a good, product, or service in the marketplace, or any other matter deemed by a court to involve a matter of public concern. Once a TPPA petition is filed, a response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five days before the hearing, and all discovery in the legal action is stayed upon the filing of a petition under the TPPA. If the party petitioning for dismissal makes a prima facie case that the legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action. …If the court dismisses a legal action pursuant to a TPPA petition, the petitioning party shall be awarded court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition, and under certain circumstances, the party who brought the lawsuit may face sanctions.
(internal citations to statute and quotations omitted). This was the first case construing this new law.
The first issue addressed by the Court of Appeals was jurisdiction. The Court first considered whether the sessions court order’s failure to address defendant’s request for fees affected its ability to be appealed. The Court noted that “a trial court’s failure to rule on a request for attorney’s fees [sometimes] renders an order nominal and deprives this Court of subject matter jurisdiction,” but rules and statutes can create exceptions to this general rule. The TPPA states that an “order dismissing or refusing to dismiss a legal action pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals.” (Tenn. Code Ann. § 20-17-106). After looking to other statutes with similar language, the Court ruled that by enacting the TPPA, the “General Assembly created a statutory exception to the final judgment rule” and that the trial court’s grant or denial of the TPPA petition was immediately appealable, even if issues regarding a request for fees were still pending. The Court explained that the statute’s use of the word “’immediate’ indicates that a party’s right to appeal the disposition of a TPPA petition is triggered not by the eventual entry of a judgment resolving the entire case, but rather only by a ruling on the petition.” (internal citation omitted). In addition, finding the petition ruling immediately appealable furthered the purpose of the statute, as “the protections afforded by the anti-SLAPP statute against the harassment and burdens of litigation are in large measure lost if the petitioner is forced to litigate a case to its conclusion before obtaining a definitive judgment through the appellate process.” (internal citation omitted).
Next, the Court considered whether the circuit court correctly found that it lacked subject matter jurisdiction of the appeal. Noting both the language of the statute and the purpose for which it was passed, the Court ruled that “section 20-17-106 confers exclusive jurisdiction upon [the Court of Appeals] to adjudicate the appeal of an order ‘dismissing or refusing to dismiss a legal action pursuant to a petition filed under the TPPA.’” (internal citation omitted). The Court noted that allowing an appeal to circuit court would “require the parties to proceed through another layer of litigation in the circuit court before the case could ultimately be resolved at the appellate level,” which was “the precise scenario the TPPA seeks to avoid.”
Having established that jurisdiction was proper, the Court turned to the merits of the dismissal. In this case, “plaintiffs failed to respond to the substance of Defendant’s arguments under the TPPA in both the general sessions court and in their briefs to [the Court of Appeals].” Once a petitioning party has met its burden, the TPPA requires the non-petitioning party to “establish a prima facie case for each essential element of the claim in the legal action.” Because plaintiffs failed to do so here, the TPPA dismissal was affirmed.
Finally, the Court addressed defendant’s request for attorney’s fees, costs, and sanctions. Pursuant to the statute, defendant was entitled to costs and attorney’s fees, as well as “any additional relief, including sanctions, that the court determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.” Defendant asserted that this should include attorney’s fees and costs incurred due to the appeal, and the Court agreed. The Court stated that, “as a matter of first impression, …the TPPA allows for an award of reasonable attorney’s fees incurred on appeal, provided that the court dismisses a legal action pursuant to a petition filed under this chapter and that such fees are properly requested in an appellate proceeding.” The Court accordingly remanded the case to sessions court “for a determination of the proper amount of reasonable fees incurred by Defendant…,” and for resolution of defendant’s request for sanctions, on which the court expressed “no opinion regarding the outcome.”
This is the first case analyzing Tennessee’s anti-SLAPP statute, and while it clarified some jurisdictional issues, the plaintiffs’ decision not to address the merits of the case resulted in the opinion being light on commentary regarding how a plaintiff might establish a prima facie case when facing a TPPA dismissal petition. Look for more opinions addressing this statute and further development of this body of law.
NOTE: This opinion was released 4.5 months after this case was assigned on briefs.