Day on Torts
The Tennessee Public Protection Act applies to legal malpractice claims in Tennessee in certain circumstances.
In Cartwright v. Hendrix, No. W2022-01627-COA-R3-CV (Tenn. Ct. App. April 15, 2024), defendants represented plaintiff in multiple lawsuits related to the administration of a trust. Defendants worked for plaintiff on a contingency fee basis.
After over ten years of unsuccessful litigation on the trust, plaintiff filed this legal malpractice case against defendants. Plaintiff asserted many theories, alleging that he did not know how many suits were filed; that defendants advanced a scheme to ultimately collect a contingency fee from him; that defendants continued to file claims after admitting that such claims were time-barred; and that defendants misled plaintiff to believe he was having success in the trust litigation.
Defendants filed a petition to dismiss plaintiff’s claims under the Tennessee Public Protection Act (“TPPA”). Defendants argued that the claims related to their right to petition (by filing lawsuits for their client) and were thus covered by the TPPA. The trial court disagreed that the TPPA applied and denied the TPPA petition. The Court of Appeals, however, reversed that ruling.
The TPPA is Tennessee’s anti-SLAPP statute. Although other aspects of the statute have been analyzed by the Court of Appeals, the question of whether the TPPA applies to legal malpractice claims was a matter of first impression.
In its analysis, the Court reviewed the approach taken by both Texas and California. The Court specifically noted that, after a case related to this issue made its way through Texas courts, the Texas legislature amended its anti-SLAPP statute to specifically exclude legal malpractice claims. California courts have considered the issue several times, but California’s statute differs from Tennessee’s. The California statute applies to actions taken “in furtherance of” a person’s right to petition, and its stated purpose is more specific than that of the Tennessee statute. The TPPA, however, “is broader in that it applies to an action that is based on, relates to, or is in response to that party’s exercise of the…right to petition.” (citing Tenn. Code Ann. § 20-17-105(a)).
Considering the language of the TPPA, the Court of Appeals ruled that legal malpractice cases can fall within the statute. The Court stated that “[w]hile it is arguable that an action which encourages an attorney to essentially petition more competently does not arise from the exercise of the right to petition, such an action certainly ‘relates to the act of petitioning.’” (internal citation omitted). The Court explained that the TPPA did not abrogate the legal malpractice claim, but that it “provides a procedural mechanism for the early disposition of those cases before parties are forced to incur substantial litigation expenses.” (internal citation omitted). If the TPPA applies, the statute’s burden-shifting framework then comes into play.
Having ruled that legal malpractice claims can fall within the TPPA, the Court turned to the facts of this case. Plaintiff alleged that defendant attorneys filed suits on his behalf for their own well-being and economic benefit. The Court wrote that the allegations “at the very least have to do with petitions filed by [defendants].” Because the claim related to the right to petition, the Court ruled that the trial court erred by refusing to consider the TPPA. Defendants satisfied the first prong of the TPPA analysis. Therefore, the Court remanded the case for consideration of whether, pursuant to the burden-shifting framework, plaintiff had established a prima facie case or defendants had shown a valid defense.
The TPPA is a relatively new statute and a hot issue in litigation. This particular case is extremely important for legal malpractice litigants, as it allows such claims to potentially be challenged under the TPPA framework. Anyone asserting or defending a legal malpractice case should carefully review the analysis in this opinion.
This opinion was released four months after oral arguments in this case.