Day on Torts
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).
The Court of Appeals quoted Tenn. Code Ann. §§ 20-17-104 and -105 in its opinion, which lays out the process for the filing of, timing of, and burden of proof for a petition to dismiss under the TPPA. Although the trial court in this matter acknowledged that plaintiffs had moved to dismiss under the TPPA, it proceeded to analyze the dismissal “utilizing a traditional Tennessee Rule of Civil Procedure 12.02(6) standard, which challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence, and requires the court to construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences.” (internal citation omitted). In fact, the trial court never analyzed whether the TPPA applied here, whether the time limitations of the TPPA had been met, or whether “the parties had met their respective burdens pursuant to Tennessee Code Annotated § 20-17-105.”
The Court of Appeals explained that although the TPPA is a relatively new statute, case law has established “two general conclusions” regarding the proper procedure when a motion to dismiss is filed thereunder. “First, when presented with a motion to dismiss filed pursuant to the TPPA, the threshold step in the trial court’s analysis must be to determine whether the claim falls within the TPPA’s parameters.” (internal citation omitted). “Second, if the court determines that the petitioning party has met such requirements of the statute, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action or if the petitioning party establishes a valid defense to the claims in the legal action.” (internal citation and quotations omitted). This two step analysis was not followed by the trial court in this case.
Defendant argued that Rule 12 and the TPPA dismissal procedures could not be harmonized that the Rule 12 should therefore be applied, but the Court rejected this argument. The Court held that “when a party files a motion to dismiss based on the TPPA, the dismissal procedure delineated in the TPPA should be followed regarding the respective claims.” Because the wrong standard was used here, the Court vacated the denial of the motion to dismiss and vacated the finding for defendant on the defamation claims. The Court wrote that, on remand, the trial court should determine whether the TPPA applied, then use the process outlined in the TPPA to consider the petition for dismissal. Further, the trial court should consider any arguments regarding timeliness of both the petition to dismiss and the response thereto under the statute on remand.
The TPPA, a relatively new statute, continues to be more defined as additional cases are litigated and appealed thereunder. This case adds a new level of clarity for litigants, as it clearly holds that the Rule 12 motion to dismiss standard is not to be used to analyze a TPPA petition for dismissal.
This opinion was released 3.5 months after oral arguments in this case.
Note: Chapter 28, Section 14 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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