Day on Torts
The Tennessee Supreme Court has affirmed that the filing of a TPPA petition to dismiss by a defendant does not bar a plaintiff from voluntarily dismissing a case.
In Flade v. City of Shelbyville, — S.W.3d —, No. M2022-00553-SC-R11-CV (Tenn. Oct. 9, 2024), plaintiff filed suit against several defendants asserting claims for libel, intentional interference with business, and intentional infliction of emotional distress. These claims were based on statements allegedly made by defendants about plaintiff on social medial and through text messages.
In addition to motions to dismiss, two defendants filed petitions to dismiss under the Tennessee Public Protection Act (“TPPA”). Before the scheduled hearing for these petitions, plaintiff filed a notice of voluntary dismissal. The trial court dismissed the matter without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01, and it denied defendants’ “Notice of Intent to Proceed” with their TPPA petitions. The Court of Appeals affirmed the allowance of the nonsuit and the refusal to consider defendants’ TPPA petitions thereafter, and in this opinion, the Tennessee Supreme Court affirmed this ruling.
Tennessee Rule of Civil Procedure 41.01 “permits liberal use of voluntary nonsuits at any time prior to final submission to the trial court for decision in a bench trial or in a jury trial before the jury retires to deliberate.” (internal citation omitted). The right to take a nonsuit is limited only when (1) certain rules and/or statutes are implicated; (2) taking a nonsuit would deprive defendant of a vested right; or (3) defendant elects to proceed on a counterclaim that was pleaded prior to the filing of the voluntary dismissal. Here, defendants argued that all three limitations applied, but the Court found that the TPPA petition to dismiss did not fit into any category limiting plaintiff’s ability to voluntarily dismiss the action.
First, the Supreme Court considered whether the TPPA itself limited plaintiff’s right to nonsuit. Rule 41.01 states that the ability to voluntarily dismiss a case without prejudice is “subject to the provisions of Rule 23.05, Rule 23.06 or Rule 66 or any statute.” When deciding whether the TPPA would fall under the “any statute” portion of the Rule, the Court noted that each of the listed rules “expressly limits the general principle allowing a plaintiff to voluntarily nonsuit an action unilaterally.” The Court also pointed out that some statutes expressly limit the availability of a nonsuit. While the Supreme Court did not go so far as to say that a statute must expressly limit nonsuits, it held that “the statutes referenced as exceptions in Rule 41.01(1), at a minimum, must contain plain statutory text that clearly limits or otherwise addresses the right to take a voluntary nonsuit.”
With that standard in mind, the Court noted that the TPPA does not explicitly limit the right to a nonsuit. Further, “the TPPA contains no language stating that the trial court shall adjudicate a petition notwithstanding any other provision of law or shall adjudicate a petition under all circumstances, nor any other language to that effect.” The Court rejected defendants’ argument that allowing a nonsuit after the filing of a TPPA petition would essentially nullify the TPPA, noting that the goals of swift adjudication and minimization of costs would still be served. The Court therefore held that “the right to a voluntary dismissal pursuant to Rule 41.01 is not currently ‘subject to’ the provisions of the TPPA.”
Second, the Supreme Court analyzed whether defendants had vested rights that would be affected by allowing the nonsuit. The Court explained that “[a] TPPA petitioner has no right to a dismissal with prejudice, an award of cots and attorney’s fees, or an award of sanctions simply by virtue of filing a petition.” Instead, the Court wrote that the proper question here was “whether the Petitioners had a vested right to the adjudication of their pending TPPA petitions at the time the Plaintiff voluntarily nonsuited.” The Court noted that nothing in the TPPA text requires a petition thereunder to be adjudicated once it is filed, and it stated that “due process does not demand that every TPPA petition be decided on its merits.” The Court found that the TPPA provides a dismissal procedure, not a substantive right, and therefore ruled that the filing of the TPPA petition did not create a vested right so as to impede plaintiff’s ability to take a voluntary dismissal.
Finally, the Supreme Court addressed defendants’ argument that the TPPA petition was akin to a counterclaim, allowing them to continue pursuit of the remedies allowed under the TPPA even after a nonsuit. Pointing out that “a counterclaim must be a claim for affirmative relief,” the Court rejected this categorization of a TPPA petition. (internal citation omitted). The Court noted that prevailing on a TPPA petition was more similar to prevailing on a defense. While the TPPA allows additional remedies to be sought, those remedies did “not convince [the Court] that a TPPA petition qualifies as a counterclaim under Rule 41.01(1).” The Supreme Court also specifically overruled a Court of Appeals opinion that seemed to suggest otherwise.
Having found that the TPPA petition did not fall into any of the three categories that would prevent plaintiff from taking a nonsuit, the trial court’s allowance of the voluntary dismissal and refusal to proceed on the TPPA petition thereafter was affirmed.
The TPPA is a relatively new statute that is being used more and more by Tennessee litigants. This opinion clarifies one important aspect of TPPA law—that a plaintiff facing a TPPA petition to dismiss may still exercise his or her right to take a voluntary dismissal.
This opinion was released 7.5 months after oral arguments.