Tennessee Public Protection Act (TPPA)

November 15, 2024

Malicious prosecution claim dismissed under TPPA.

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.”

October 14, 2024

TPPA dismissal of defamation claim affirmed.

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

TPPA dismissal of a defamation claim related to news stories about an orthodontic business was recently affirmed.

In SmileDirectClub, Inc. v. NBCUniversal Media, LLC, No. M2021-01491-COA-R3-CV (Tenn. Ct. App. Sept. 19, 2024), plaintiff teledentistry business offered teeth straightening services. The business model operated on minimal dentist/orthodontist involvement, and therefore cost significantly less than traditional braces. Defendant news organization published an online article and a television news story that included claims that some of plaintiff’s clients had experienced painful problems and suffered permanent damage. The news story asserted that employees told customers that the initial visit with a dentist was not required, and it discussed a confidentiality agreement required in order to obtain a refund from plaintiff.

Based on these print and television stories, plaintiff filed defamation and Tennessee Consumer Protection Act (“TCPA”) claims against defendant. Defendant filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”), which the trial court granted. On appeal, dismissal was affirmed.

September 20, 2024

Private security officer not a public figure under TPPA.

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

Plaintiff’s role as the Director of Safety and Security at a private college did not make him a public official or public figure for purposes of the Tennessee Public Protection Act (TPPA).

In McMurtrie v. Sarfo, No. E2023-01825-COA-R3-CV (Tenn. Ct. App. Sept. 12, 2024), plaintiff was employed as the Director of Safety and Security at a small, private college. Though he had previously been a state trooper and FBI agent, at the time relevant to this case he was not a sworn law enforcement officer for any city or county, and he did not carry a gun. Instead, he oversaw campus security and was the supervisor for the college’s five security guards. None of these guards carried weapons or had the authority to arrest anyone.

Defendant Sarfo was an alumnus of the college. On a rainy night, he had stopped in front of a campus building to take a photo. When plaintiff saw Sarfo’s vehicle in the roadway, he pulled next to him and rolled down his window. He honked to get Sarfo’s attention, and when Sarfo rolled his window down, plaintiff asked “why are you parked in my driveway?” Plaintiff asserted that he meant this as a joke. Sarfo responded that he was taking a photo of a building he previously lived in, and that he was in a rental car and was having trouble shifting out of park. Plaintiff told Sarfo that he needed to move his car out of the middle of the road and into one of several open parking spaces. Sarfo asked plaintiff to identify himself, so plaintiff gave his name and title. The interaction between the men lasted approximately one minute, and there was no evidence that plaintiff knew Sarfo’s race before pulling next to him.

August 26, 2024

Defamation claim allowed to proceed under TPPA.

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

While a plaintiff faced with a TPPA petition to dismiss could not make out a prima facie case for his false light invasion of privacy or intentional infliction of emotional distress claims, his defamation claim related to an allegedly false Title IX rape complaint was allowed to proceed.

In Doe v. Roe, No. M2023-00045-COA-R3-CV (Tenn. Ct. App. Aug. 21, 2024), plaintiff had filed suit against defendant based on defendant’s allegations that plaintiff raped her on a college campus. Plaintiff’s complaint included claims for defamation, false light invasion of privacy, and intentional infliction of emotional distress based on defendant’s statements to friends and family, postings on social media, and filing of a Title IX complaint.

After the complaint was filed, defendant moved to dismiss under the Tennessee Public Participation Act (“TPPA”). The trial court denied the petition, finding the TPPA inapplicable to this case. In a first appeal, the Court of Appeals ruled that defendant’s “filing of a Title IX complaint fell within the scope of the TPPA.” The Court of Appeals remanded to the trial court “for a determination regarding whether there is a prima facie case for [plaintiff’s] claims against [defendant] insofar as they pertain to her Title IX complaint…” On remand, the trial court granted the TPPA petition to dismiss the false light and intentional infliction of emotional distress claims connected to the Title IX filing, but it denied dismissal of the defamation claim. This appeal followed, where the trial court ruling was affirmed.

June 24, 2024

TPPA applies to case against attorneys related to previous litigation.

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

A claim that asserted defendant attorneys acted in their own self-interest when they represented another party in multiple lawsuits against plaintiffs fell within the ambit of the Tennessee Public Protection Act.

In Garner v. Thomason, Hendrix, Harvey, Johnson & Mitchell, PLLC, No. W2022-01636-COA-R3-CV (Tenn. Ct. App. Apr. 15, 2024), plaintiffs had been involved in over ten years of trust litigation. Defendant attorneys represented plaintiffs’ brother in the filing of these trust lawsuits against plaintiffs, and plaintiffs were successful in defending all the claims.

After plaintiffs and the brother apparently reconciled, plaintiffs filed this suit against the attorneys who filed the trust lawsuits on the brother’s behalf. Plaintiffs alleged that the attorneys acted in their own self-interest hoping to eventually recover a contingency fee, that they mislead the brother, that they threatened the brother to continue the litigation, and that plaintiffs were accordingly damaged. (Note that the brother filed a very similar lawsuit at the same time, wherein the Tennessee Court of Appeals ruled that a legal malpractice claim can fall within the TPPA).