Day on Torts
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.
When a defendant files a petition to dismiss under the TPPA, the court should engage in a multi-step analysis under the statute. First, the party filing the petition must make “a prima face 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…” (internal citation omitted). In this case, the trial court ruled that the defendant did not meet her burden under the TPPA, but the plaintiff did not actually raise that argument in the trial court. Because the plaintiff did not make the argument, the Court of Appeals ruled that “plaintiffs waived any claim that the defendants did not meet their burden under Tenn. Code Ann. § 20-17-105(a),” and the trial court’s ruling was reversed.
Further, the Court of Appeals ruled that the plaintiff should not have been allowed to file a deposition transcript after the TPPA hearing. During the TPPA hearing, the defendant referenced portions of a deposition transcript she had filed, and she also noted that plaintiff had failed to file any deposition excerpts. After the hearing had concluded, the plaintiff proceeded to file the entire transcript of the relevant deposition. On appeal, the defendant argued that this filing was untimely and should not be considered, and the Court of Appeals agreed.
The TPPA states that responses to petitions to dismiss, including any affidavits, should be filed no less than five days before the hearing. The Court wrote that “the same would be true of a deposition,” and it ruled that “Tenn. Code Ann. § 20-17-104(c) bars filing a deposition after the hearing.”
The case was remanded for further consideration according to the Court’s rulings.
This opinion was released two weeks after oral arguments.