Day on Torts
Where defendants filed a motion to dismiss under the TPPA and plaintiff thereafter filed a voluntary dismissal of one of the defendants, but the trial court denied the voluntary dismissal, defendants did not have the right to automatically appeal the voluntary dismissal denial under the TPPA, as the TPPA petition was still pending.
In Kent v. Global Vision Baptist, Inc., No. M2023-00267-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2023), plaintiffs filed suit against defendant church and pastor for nuisance, trespass, and violation of local ordinances. The suit largely related to the church’s use of a tent as a structure. Defendants filed a petition to dismiss the complaint under the Tennessee Public Participation Act (“TPPA”). Thereafter, plaintiffs attempted to voluntarily dismiss the pastor without prejudice. At a hearing regarding the dismissal, the trial court denied the voluntary dismissal, and defendants argued that plaintiffs could only dismiss the pastor with prejudice. During the hearing, plaintiffs’ counsel allegedly orally agreed to a dismissal with prejudice, but then repudiated that agreement. Ultimately, the trial court denied dismissal of the pastor with or without prejudice.
Defendants filed this appeal under Tenn. Code Ann. § 20-17-106, a provision of the TPPA which “allows a party to immediately appeal a court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under the TPPA.” Plaintiffs argued that the Court of Appeals did not have jurisdiction under this statute, and the Court agreed.
Defendants asserted that they were “appealing an order dismissing or refusing to dismiss the complaint pursuant to a petition filed under the TPPA,” but the Court pointed out that the TPPA petition for dismissal was still pending in the trial court. In fact, the trial court had stayed any proceeding on the TPPA petition until this appeal was heard. No argument or hearing had taken place on the TPPA petition itself—the only hearing had resulted in the trial court denying voluntary dismissal of defendant pastor.
While the Court acknowledged that some voluntary dismissal hearings created jurisdiction under the TPPA immediate appeal provision, it noted that “all of [those] cases deal with voluntary dismissal and either a grant of the TPPA petition or termination of the TPPA petition as a result of the trial court accepting a voluntary dismissal.” Here, because voluntary dismissal was denied, the hearing being appealed from had no effect whatsoever on the TPPA petition. The Court wrote that because defendants were “not appealing an order dismissing or refusing to dismiss the complaint pursuant to a petition filed under the TPPA, there [was] nothing for this court to review under Tennessee Code Annotated 20-17-106.” The appeal was thus dismissed for lack of subject matter jurisdiction.
This opinion was filed one week after oral arguments in this case.