Tennessee Public Protection Act

January 10, 2025

TPPA petition to dismiss made moot by Rule 12 dismissal.

Where a case was dismissed pursuant to the defendant’s Rule 12 motion, the trial court should not have held a subsequent hearing on and granted dismissal under the defendant’s separate TPPA petition. In Horst v. Gaar, No. W2023-00442-COA-R3-CV (Tenn. Ct. App. Dec. 4, 2024), the plaintiff was the former son-in-law of the defendant. Plaintiff ran an investment business, and while plaintiff and defendant’s daughter were divorcing, defendant allegedly made statements to one of plaintiff’s clients that caused the client to move his investments to a different firm. The complaint alleged that defendant told the client that plaintiff was leaving Memphis and moving to Las Vegas, and that such a move would “jeopardiz[e] the service and expertise that [client] was used to getting from [the business] locally.” Based on these statements, plaintiff filed this action for tortious interference with a business contract, intentional interference with a business relationship, and a violation of the TCPA.

Defendant filed a motion to dismiss under Tennessee Rule of Civil Procedure 12, asserting that plaintiff’s complaint failed to state a claim for relief. Defendant also filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”). The rule 12 motion was set for hearing, and the trial court granted dismissal. In the order granting dismissal, the trial court stated that “it would retain jurisdiction over the unheard TPPA petition to dismiss.” Some time later, the trial court held a hearing and granted the TPPA petition to dismiss. The trial court also awarded costs, attorney’s fees and expenses in the TPPA dismissal order. On appeal, dismissal pursuant to Rule 12 was affirmed, but the Court of Appeals vacated the decision to grant dismissal under the TPPA.

A Rule 12 motion to dismiss challenges the sufficiency of the complaint, and the Court of Appeals agreed that dismissal was appropriate here. Looking first to the interference with contract claim, the Court noted that a plaintiff asserting a common law or statutory claim for interference with contract must prove certain elements, including that a breach of contract occurred. The plaintiff’s contract with the client at issue permitted the client to move his money at any time for any or no reason. Because of this language, the Court agreed with the trial court that the client did not breach the contract. Without a breach of contract, plaintiff could not state a claim for tortious interference with contract and dismissal was appropriate.

January 3, 2025

Late-filed evidence not allowed in TPPA petition hearing.

by The Law Offices of John Day, P.C.

Plaintiff construction company should not have been allowed to file a deposition transcript related to its argument against dismissal under the TPPA after the TPPA hearing had concluded.

In Kedalo Construction, LLC v. Ward, No. M2024-00224-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2024), the plaintiff construction company and the defendant store owner disagreed about construction work done by the plaintiff pursuant to a contract between the parties. The defendant created a website and Facebook page detailing her experience with the plaintiff company, and she left multiple reviews online “accusing the company of misconduct,” including the theft of tiles.

The plaintiff construction company filed this suit for defamation, and the defendant responded with a petition to dismiss under the TPPA. After substantial delays and a hearing, the trial court denied the petition to dismiss, ruling only that “Defendants [had] not met their burden.” On appeal, this ruling was reversed.

December 20, 2024

TPPA petition to dismiss not affected by nonsuit where defendant also filed motion for summary judgment.

by The Law Offices of John Day, P.C.

Where defendant had filed both a TPPA petition to dismiss and a motion for summary judgment, plaintiff was not allowed to voluntarily dismiss the action against that defendant.

In Garramone v. Dugger, No. M2023-00677-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2024), plaintiff filed a false light invasion of privacy claim against defendants based on events that occurred when plaintiff ran for re-election as a city commissioner. According to plaintiff, defendants were involved in creating a website that alleged plaintiff had been given a free pass on drinking and driving and speeding because she was a commissioner.

Defendant Curtsinger and Defendant Patrick both filed petitions to dismiss under the Tennessee Public Participation Act. Defendants asserted that the claim was related to their exercise of free speech. Defendant Patrick also filed a motion for summary judgment.

November 15, 2024

Malicious prosecution claim dismissed under TPPA.

by The Law Offices of John Day, P.C.

Where plaintiff did not have evidence that an ethics complaint filed with the real estate commission by defendant was decided on the merits and due to plaintiff’s innocence, plaintiff’s malicious prosecution claim should have been dismissed pursuant to defendant’s TPPA petition.

In Gersper v. Turner, No. M2022-01136-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2024), plaintiff and defendant owned condos in the same building. When defendant resigned from the building’s board after opposition from several owners, plaintiff took his seat. While campaigning to retain the seat, plaintiff, who was a realtor, made a video showing current issues with the building. Plaintiff circulated the video to other board members, but defendant also eventually saw the video.

Based on this video, defendant filed a complaint with the Tennessee Real Estate Commission, asserting among other things that plaintiff was hurting the value of the property. The Commission sent defendant a letter two months later stating that the complaint had been reviewed by the legal staff and presented to the Commission, and “[t]he decision has been taken to close the complaint with no action.”

November 1, 2024

Tennessee Supreme Court rules that TPPA petition does not affect right to nonsuit.

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court has affirmed that the filing of a TPPA petition to dismiss by a defendant does not bar a plaintiff from voluntarily dismissing a case.

In Flade v. City of Shelbyville, — S.W.3d —, No. M2022-00553-SC-R11-CV (Tenn. Oct. 9, 2024), plaintiff filed suit against several defendants asserting claims for libel, intentional interference with business, and intentional infliction of emotional distress. These claims were based on statements allegedly made by defendants about plaintiff on social medial and through text messages.

In addition to motions to dismiss, two defendants filed petitions to dismiss under the Tennessee Public Protection Act (“TPPA”). Before the scheduled hearing for these petitions, plaintiff filed a notice of voluntary dismissal. The trial court dismissed the matter without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01, and it denied defendants’ “Notice of Intent to Proceed” with their TPPA petitions. The Court of Appeals affirmed the allowance of the nonsuit and the refusal to consider defendants’ TPPA petitions thereafter, and in this opinion, the Tennessee Supreme Court affirmed this ruling.

May 22, 2024

TPPA may apply to legal malpractice claims.

by The Law Offices of John Day, P.C.

The Tennessee Public Protection Act applies to legal malpractice claims in Tennessee in certain circumstances.

In Cartwright v. Hendrix, No. W2022-01627-COA-R3-CV (Tenn. Ct. App. April 15, 2024), defendants represented plaintiff in multiple lawsuits related to the administration of a trust. Defendants worked for plaintiff on a contingency fee basis.

After over ten years of unsuccessful litigation on the trust, plaintiff filed this legal malpractice case against defendants. Plaintiff asserted many theories, alleging that he did not know how many suits were filed; that defendants advanced a scheme to ultimately collect a contingency fee from him; that defendants continued to file claims after admitting that such claims were time-barred; and that defendants misled plaintiff to believe he was having success in the trust litigation.