Day on Torts
A real estate professional who served as HOA president and who assisted with the development of a residential community qualified as a limited public figure for purposes of a google review about changes to the development.
In Charles v. McQueen, No. M2021-00878-SC-R11-CV (Tenn. July 3, 2024), plaintiff worked as a local real estate professional. The company developing Durham Farms, a planned community, hired plaintiff to assist with the community development. In addition to working for Durham Farms, plaintiff served as the HOA president at Durham Farms and ran homeowners’ meetings.
Defendant purchased a home in Durham Farms in 2017. In the following years, Durham Farms changed several features of its community. Lot size requirements were reduced in 2019, then in 2020 Durham Farms announced plans to add over 160 rental-only units. After this announcement, controversy grew as homeowners opposed the new plans. As part of the opposition effort, several Durham Farms residents left google reviews on the developer’s page. Defendant wrote a google review expressing her frustration with the “bait and switch” tactics and the “multiple changes to our development.” Defendant’s review was the only one that used plaintiff’s name, as it stated: “Bill Charles, especially, uses misleading tactics to lure in home buyers only to deceive them.”
Plaintiff Bill Charles filed this suit, including claims for false light and defamation in his complaint. Defendant filed a motion to dismiss under the Tennessee Public Participation Act (TPPA). The trial court granted dismissal, ruling that plaintiff was a limited public figure for the purpose of both claims and thus had to show actual malice. The Court of Appeals, however, found that plaintiff was only required to prove actual malice for his false light claim. In this opinion, the Tennessee Supreme Court agreed with the trial court and ruled that dismissal under the TPPA was in order.
When a defendant files a petition to dismiss under the TPPA, the court engages in a two-step process. “First, the court determines whether the petitioner has made a prima facie case that the challenged lawsuit is based on, relates to, or is in response to the petitioner’s exercise of the right to free speech, right to petition, or right of association.” (internal citation and quotation omitted). If the TPPA applies, the court then analyzes whether the plaintiff “made a prima facie case for each essential element of his claim.” If the plaintiff cannot support his claim, or if the defendant establishes a valid defense, dismissal is required.
Here, because the first prong of the TPPA analysis was satisfied, the issues surrounded whether plaintiff had made a prima facie case for the elements of his false light and defamation claims. The level of proof required from plaintiff depended on whether plaintiff was considered a public figure in the context of this case.
Defendant argued that plaintiff qualified as a limited-purpose public figure. “Limited-purpose public figures include those who have voluntarily thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” (internal citation omitted). When determining whether an individual is a limited-purpose public figure, a court must first “define the public controversy” and then “determine whether the plaintiff is a public figure for the purposes of that controversy.”
The Court of Appeals defined the controversy at issue as the addition of rental units to Durham Farms, but the Supreme Court found that the controversy was broader. While the disagreement about the rental units was the precipice of the controversy, the “opposition spawned a broader discussion about [the developer’s] repeated changes to the development plan[.]” The Court wrote that changes to the Durham Farms development “could affect neighboring communities,” and that the concerns expressed by the residents “were of interest to city officials and the larger community.” The Supreme Court therefore defined the public controversy to include all recent changes to the community plan, not simply the addition of rental units.
Having defined the controversy, the Court next considered whether plaintiff was a limited-purpose public figure in that controversy. Although plaintiff maintained that he was not involved in the rental unit additions, the Court noted that the controversy was not narrowly defined. Plaintiff served as the registered agent and HOA president of Durham Farms. He communicated development plan changes to residents and interacted with city officials on behalf of Durham Farms. He was the developer’s “primary point of contact for residents.” Further, plaintiff “had access to effective channels of communication that allowed him to rebut any defamatory statements.” When viewed together, the Court determined that plaintiff qualified as a limited-purpose public figure.
Because plaintiff was a public figure here, he needed to show a prima facie case of actual malice for his defamation and false light claims. “To establish a prima facie case under the TPPA, a party must present enough evidence to allow the jury to rule in his or her favor on that issue.” Actual malice requires the plaintiff to show that the “statement was made with knowledge it was false and defamatory or with reckless disregard for the truth of the statement.” (internal citation omitted). A defendant’s “failure to thoroughly investigate a claim, without more, does not establish actual malice.” (internal citation omitted).
Defendant testified that she believed her statement that plaintiff “uses misleading tactics to lure in home buyers only to deceive them” was true. Defendant pointed to the facts that plaintiff was the communication point between the developer and residents; that the development plan was featured in the sales office; and that she had read news reports about plaintiff’s involvement in the development. While plaintiff may have been able to show that defendant could have investigated more thoroughly, such a showing was not enough for actual malice. Plaintiff’s complaint should have accordingly been dismissed under the TPPA.
Finally, the Court addressed plaintiff’s assertion that defendant waived her request for attorneys’ fees under the TPPA by failing to include it in the statement of issues in her Court of Appeals brief. Because defendant was the appellee, the Court ruled that she adequately preserved her attorneys’ fees request by including it in her Court of Appeals brief four times, including in the table of contents, the summary of argument section, the argument section, and the conclusion.
This case illustrates how the TPPA may bring speedy resolution to certain defamation and false light claims. Because plaintiff was deemed a public figure, he needed to make a prima facie showing of actual malice to survive dismissal. His inability to do so not only resulted in dismissal, but also lead to defendant being awarded attorneys’ fees under the TPPA.
The Tennessee Supreme Court released this opinion nine months after oral arguments.