Day on Torts
A plaintiff may take a voluntary nonsuit even after the defendant has filed a petition to dismiss under the TPPA, and a petition to dismiss under the TPPA does not survive after voluntary dismissal by the plaintiff and is not considered a counterclaim.
In Flade v. City of Shelbyville, Tennessee, No. M2022-00553-COA-R3-CV (Tenn. Ct. App. Feb. 24, 2023), 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 made by defendants about plaintiff through text messages and on social media regarding plaintiff’s role as the landlord of a duplex.
In response to the complaint, the two non-governmental defendants filed separate motions to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) and the Tennessee Public Participation Act (TPPA), Tennessee’s anti-SLAPP statute. While these motions were pending, plaintiff filed notice of voluntary dismissal. The trial court dismissed the matter without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01, and it held that “the TPPA was not excepted from the right to dismissal without prejudice under Rule 41.01.” On appeal, this ruling was affirmed.
After reviewing the history of the TPPA, which was 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…,” the Court of Appeals began its analysis by considering whether the TPPA fell into an exception to a plaintiff’s right to take a voluntary dismissal. (quoting Tenn. Code Ann. § 20-17-102). Rule 41.01 allows a plaintiff to take “a voluntary non-suit…as a matter of right,” and Tennessee’s rule on nonsuits “is much more liberal than that obtaining [sic] in federal courts and in many other jurisdictions.” (internal citations omitted). Unless an exception applies, then, the right to nonsuit is “free and unrestricted.” (internal citation omitted).
Here, defendants argued that two exceptions applied to prevent plaintiff from voluntarily dismissing this case. First, defendants asserted that the TPPA fell under the statutory right exception to Rule 41.01. Rule 41.01 states that the right to nonsuit is “subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute.” To support their argument, defendants pointed to language in the TPPA stating that “it was not intended to be subservient to the Tennessee Rules of Civil Procedure” and that if there were ambiguity between the TPPA and the Rules, “the TPPA should be construed broadly to effectuate its purpose and intent.” The Court of Appeals, however, rejected the application of this exception.
The Court noted that a similar issue had been addressed by a previous panel of the Court of Appeals in Adamson v. Grove, 2002 WL 17334223 (Tenn. Ct. App. Nov. 30, 2022), in which the Court held that “the TPPA does not fall within the ‘statutory exception’ provided by Rule 41.01 in the context of a TPPA motion filed after the trial court entered an order on plaintiff’s notice of nonsuit.” In Adamson, however, defendants had not filed an answer or a petition to dismiss at the time plaintiff filed his nonsuit, whereas in the instant case, the petition for TPPA dismissal was filed prior to plaintiff’s notice of voluntary dismissal. Nonetheless, the Court found the reasoning of Adamson instructive.
Like in Adamson, the Court reviewed cases determining that motions to dismiss filed under the HCLA have not been held to fall within the statutory right exception to Rule 41.01. It also cited caselaw holding that “the ‘of any statute’ [language of Rule 41.01] must refer to statutes that specifically limit a party’s right to obtain a voluntary nonsuit or otherwise relate specifically to the effect of a voluntary nonsuit.” (internal citation omitted). The Court reasoned:
The TPPA, on the other hand, does not come within the purview of actions explicitly or implicitly excepted by Rule 41.01. Rather, as the federal district court has observed, the TPPA provides for a dismissal procedure that differs from Rule 12(b)(6) of the Federal Rules of Civil Procedure. The TPPA appears, on its face, to be a means of circumventing the ordinary allocation of burdens imposed by Rule 12(b) and developed, in federal caselaw, over many years and countless incremental decisions. This observation is similarly applicable to the TPPA’s impact on Rule 12.02(6) of the Tennessee Rules of Civil Procedure. … In short, the TPPA provides a dismissal procedure that differs from Rule 12.02. If the trial court finds that the act or speech complained of by the plaintiff falls within the purview of the TPPA, then the procedural mechanisms set forth in the Act govern a petition to dismiss filed in accordance with section 20-17-104.
However, the TPPA does not specifically or implicitly alter the right to a nonsuit provided by Rule 41.01. In Adamson, this Court held that the TPPA provides no statutory exemption to Rule 41.01 that would allow a court to exercise jurisdiction over a TPPA petition filed after the plaintiff avails him/herself of the right to a nonsuit under Rule 41.01. Notwithstanding the distinguishable procedural posture of Adamson to the current case, we agree with the Adamson Court that the TPPA is not the type of ‘statute’ contemplated by the exception stated in Rule 41.01.
(internal citations and quotations omitted).
Having determined that the statutory right exception to Rule 41.01 did not apply, the Court next considered whether the vested right exception would prevent plaintiff from taking his nonsuit. “[T]here is an implied exception to Rule 41.01 which prohibits nonsuit when it would deprive the defendant of some vested right.” (internal citation omitted). Defendants in this case argued that “because a party petitioning for relief under the TPPA is entitled to a dismissal with prejudice, attorney’s fees and costs, unless the non-petitioning party establishes a prima facie case for each element of his/her claim, the right to relief vests upon the filing of the petition.”
The Adamson Court held that the vested right exception did not apply because defendants did not file their TPPA petitions until after the nonsuit was filed, but here the TPPA petitions were filed first. Nonetheless, the Court came to the same conclusion, ruling that the vested right exception was inapplicable to the TPPA. The Court explained:
The filing of a TPPA petition does not provide an automatic right to recovery or to dismissal with prejudice. Rather, it provides a dismissal procedure with a burden-shifting mechanism that differs from Rule 12.02. There is no “right” to recovery under the TPPA. Rather, the recovery of attorney’s fees and costs is predicated on the successful adjudication of the petition. A potential award of sanctions under the Act is at the discretion of the trial court. Accordingly, the TPPA does not fall within the ambit of the “vested rights” exception to Rule 41.01.
After the Court ruled that the TPPA did not fall within an exception to plaintiff’s ability to take a voluntary nonsuit under Rule 41.01, it addressed the issue of whether the petition to dismiss under the TPPA survived the nonsuit. Defendants argued that “to allow a voluntary dismissal without prejudice under Rule 41.01 notwithstanding their pending TPPA petitions works an end run around substantive protections afforded by the TPPA.”
Defendants pointed to cases from Texas and California to assert that “because the TPPA mandates an award of attorney’s fees and allows for the imposition of sanctions if an action is dismissed pursuant to the Act, a TPPA petition to dismiss survives a Rule 41.01 nonsuit.” The Court of Appeals pointed out, however, that the Texas rule governing nonsuits differs from Rule 41.01 in that it specifically states that nonsuits will not affect motions for sanctions and other costs, and the California anti-SLAPP provisions are contained within California’s Rules of Civil Procedure, a much different set up than that employed in Tennessee.
Finding the Texas and California authority unpersuasive, the Court looked to the language of Rule 41.01, which provides that a counterclaim pleaded prior to the notice of voluntary dismissal can survive a nonsuit. Pursuant to this language, the Adamson Court had stated that “defendant’s TPPA petition could have survived dismissal as a counterclaim had it been properly pleaded before the plaintiff nonsuited the action,” but the Court in this case deemed this statement dicta and re-examined the issue, ultimately concluding that the TPPA petition could not survive even if filed before the notice of voluntary dismissal. (internal citation omitted). The Court looked to the meaning of counterclaim, as well as federal law ruling that the TPPA is a procedural mechanism rather than a substantive law.
The Court reasoned:
A counterclaim, on the other hand, is not a procedural mechanism; rather, it is an affirmative pleading that is sufficient to state a claim for relief[.] In Blake, the court held that the employer’s prayer for relief could have been brought ‘as an original complaint’ and, accordingly, could stand on its own as a counterclaim. The relief available under the TPPA, including sanctions, is contingent on the favorable adjudication of a special motion to dismiss that includes a burden shifting provision. Sanctions under the Act are at the discretion of the trial court. The Act combines the procedural mechanism of a Tennessee Rules of Civil Procedure Rule 12.02(6) motion to dismiss with, as the California Court of Appeal has characterized it, a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. As counsel for Mr. Flade asserted at the February 2022 hearing in the trial court, the TPPA does not create a private right of action. Tenn. Code Ann. § 20-17-108. It also does not [a]ffect[] the substantive law governing any asserted claim[.]
(internal citations and quotations omitted). The Court further pointed out that the General Assembly could have specifically allowed for TPPA petitions to dismiss to be counterclaims under Rule 41.01, but it chose not to do so. The Court accordingly held that a petition to dismiss under the TPPA is not an exception to the right to voluntary dismissal under Rule 41.01, and a TPPA petition does not survive a nonsuit. The ruling of the trial court was therefore affirmed.
We are seeing more and more opinions interpreting the TPPA, a relatively new statute, and this particular opinion seems to close the door on the possibility that the TPPA falls into an exception to a plaintiff’s right to take a voluntary dismissal under Rule 41.01 (unless the Supreme Court takes up this issue).
This opinion was released 1.5 months after this case was assigned on briefs.
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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