Day on Torts
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.”
Plaintiff thereafter filed this suit, asserting claims for defamation/false light invasion of privacy, tortious interference with business relations, and malicious prosecution. Defendant filed a petition to dismiss under the TPPA. After the TPPA petition was filed but before it was heard, plaintiff voluntarily dismissed his defamation and tortious interference claims, leaving only his malicious prosecution claim to litigate. The trial court denied dismissal of the malicious prosecution claim under the TPPA, but that ruling was reversed on appeal.
The Court of Appeals began its analysis by discussing whether the TPPA applied in this case. Defendant argued that plaintiff filed this case in response to defendant’s exercise of free speech, and the Court agreed. “The TPPA defines exercise of the right of free speech as (1) a communication that was (2) made in connection with a matter of public concern and (3) falls within the protection of the United States Constitution or the Tennessee Constitution.” (internal citation and quotations omitted). The TPPA states that a “matter of public concern” includes issues related to “community well-being.” (quoting Tenn. Code Ann. § 20-17-103(b)). Because the speech related to a building of condo owners, and such a group has been defined as a community, the Court agreed that “Defendant’s ethics complaint related to community well-being.” The TPPA therefore applied.
Next, defendant argued that he had the right to have all three of plaintiff’s claims analyzed under the TPPA, despite plaintiff’s voluntary dismissal of two of those claims. The Court of Appeals rejected that argument. The Court pointed to the Tennessee Supreme Court’s recent decision in Flade v. City of Shelbyville, Tennessee, — S.W.3d —, 2024 WL 4448736 (Tenn. Oct. 9, 2024), where the Court ruled that a TPPA petition to dismiss did not affect a plaintiff’s right to take a voluntary dismissal.
Finally, the Court of Appeals considered whether dismissal of the malicious prosecution claim was warranted under the TPPA. Because defendant showed that the TPPA applied, the burden shifted to plaintiff to “establish a prima facie case for each essential element of the claim in the legal action.” (internal citation omitted). A plaintiff asserting malicious prosecution must show that “the defendant (1) instituted a proceeding against him without probable cause, (2) with malice, and (3) that the proceeding terminated in the plaintiff’s favor.” (internal citation and quotations omitted). “[A] plaintiff can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding…, indicates the termination of the underlying…proceeding reflects on the merits of the case and was due to the innocence of the accused.” (internal citation omitted).
Here, the letter sent by the Commission to defendant only stated that the complaint was closed. It did not “show that the termination of the underlying proceeding reflected on the merits or was due to Plaintiff’s innocence.” (internal citation omitted). Because plaintiff could not establish this element of his claim, dismissal under the TPPA should have been granted.
The Court concluded by finding that defendant was entitled to costs and attorney’s fees under the TPPA.
The TPPA is being used more and more frequently by Tennessee litigants. If a suit might be covered by the TPPA, plaintiffs would be wise to anticipate a TPPA petition to dismiss being filed.
This opinion was released 4.5 months after oral arguments in this case.