When a litigant has filed a motion to dismiss pursuant to the Tennessee Public Participation Act (TPPA), that motion should be analyzed under the provisions of the TPPA rather than under the traditional Tennessee Rule of Civil Procedure 12 analysis.
In Reiss v. Rock Creek Construction, Inc., No. E2021-01513-COA-R3-CV, 2022 WL 16559447 (Tenn. Ct. App. Nov. 1, 2022), plaintiffs filed suit against defendant construction company related to defendant’s construction of plaintiffs’ residential home, and defendant filed a counterclaim, which was the claim at issue in this appeal. The counterclaim asserted claims for breach of contract, libel and slander based on statements allegedly made online and to third parties by plaintiffs about defendant.
After withdrawal of plaintiffs’ counsel, plaintiffs missing discovery deadlines, and the filing of a motion to dismiss by defendants, plaintiffs obtained new counsel and filed a motion to dismiss the defamation counterclaims under the TPPA. The trial court denied the TPPA motion to dismiss, and plaintiffs appealed this denial, which was vacated on appeal due to the trial court’s use of the wrong analysis.
The only issue on appeal was whether the trial court correctly denied plaintiffs’ TPPA motion to dismiss the defamation claims and whether that motion should be granted on remand. The Court of Appeals began its analysis with a brief overview of the TPPA, noting that it is Tennessee’s Anti-SLAPP statute and that it is “designed to encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury.” (internal citations omitted). The Court quoted from a previous case, explaining that a party may move for dismissal under the TPPA, and that “if the petitioning party makes a prima facie case that they have participated in protected activity under the TPPA, the court may then dismiss the action against them unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.” (quoting Tenn. Code Ann. § 20-17-105(a)(b); additional citation omitted). The Court further noted that in order for the TPPA to apply to the “exercise of the right of association” or the “exercise of the right of free speech,” the activity must be “connected with a matter of public concern.” (internal citation omitted).
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