Day on Torts
Where defendant had filed both a TPPA petition to dismiss and a motion for summary judgment, plaintiff was not allowed to voluntarily dismiss the action against that defendant.
In Garramone v. Dugger, No. M2023-00677-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2024), plaintiff filed a false light invasion of privacy claim against defendants based on events that occurred when plaintiff ran for re-election as a city commissioner. According to plaintiff, defendants were involved in creating a website that alleged plaintiff had been given a free pass on drinking and driving and speeding because she was a commissioner.
Defendant Curtsinger and Defendant Patrick both filed petitions to dismiss under the Tennessee Public Participation Act. Defendants asserted that the claim was related to their exercise of free speech. Defendant Patrick also filed a motion for summary judgment.
After these petitions were filed, but before any arguments, plaintiff filed a voluntary dismissal. Plaintiff styled the voluntary dismissal as being “with prejudice.” The trial court ruled that Defendant Curtsinger’s TPPA motion was now moot and refused to rule on it. Because Defendant Patrick had also filed a motion for summary judgment, however, the trial court ruled that plaintiff was not entitled to take a voluntary dismissal as to the claims against Patrick. The trial court granted Defendant Patrick’s TPPA petition, but instead of awarding him the $74,000 in attorneys’ fees he sought, the trial court awarded him $25,000 under the TPPA. On appeal, the rulings of the trial court were affirmed, but the Court of Appeals vacated the attorneys’ fee award amount and remanded the issue to the trial court.
On appeal, the Court first considered the trial court’s ruling that Defendant Curtsinger’s TPPA petition to dismiss did not survive plaintiff’s voluntary dismissal. Noting that the Tennessee Supreme Court has addressed this issue, the Court of Appeals agreed that plaintiff had a “free and unrestricted right to voluntarily nonsuit her claims,” even after the TPPA petition to dismiss was filed, as a TPPA petition to dismiss does not fall within any exception to a plaintiff’s right to nonsuit. The finding that Curtsinger’s TPPA petition was moot was thus affirmed.
Next, plaintiff argued that the trial court should have denied Defendant Patrick’s TPPA petition as moot because she purported to nonsuit her claim with prejudice. Plaintiff did not dispute “that a pending motion for summary judgment prevents voluntary dismissal without prejudice,” but she attempted to distinguish her nonsuit due to her adding the wording “with prejudice.” The Court rejected this argument. The Court noted that under Tennessee Rule of Civil Procedure 41.01(1), a voluntary dismissal cannot be “with prejudice.” Further, “Tennessee does not recognize the procedural device called retraxit, which is an open and voluntary renunciation of the plaintiff’s suit in court by which the plaintiff forever loses his action.” (internal citation omitted). Because plaintiff was not permitted to nonsuit her case with prejudice under Tennessee law, the voluntary nonsuit was not effective against Defendant Patrick, who had a pending motion for summary judgment. The Court of Appeals therefore affirmed the trial court’s decision to consider Defendant Patrick’s TPPA petition.
Finally, the Court analyzed the trial court’s limitation of the attorney’s fees awarded to Defendant Patrick under the TPPA. While Patrick sought more than $74,000 in fees, the trial court only awarded him $25,000. The trial court stated that because the TPPA attorney’s fee provision was in derogation of the common law, it should be narrowly construed, and that all fees incurred by Patrick related to his “defense on the merits of the [plaintiff’s] claims” should be excluded. The Court of Appeals disagreed.
The TPPA itself states that it should be broadly construed, and the Tennessee Supreme Court has endorsed this principle. The Court of Appeals noted that a TPPA petitioner may have to establish a valid defense to the claim as part of the TPPA analysis, so fees related to the merits of the original claim can fall within the TPPA fee provision. Because the Court determined that the trial court construed the fee provision too narrowly, it vacated the $25,000 award and remanded the case for further consideration. It also specifically found that fees related to the appeal should be awarded.
With the TPPA being frequently used by defendants, litigants are learning more about how to plan for the use of this statute. While previous cases held that a plaintiff could take a voluntary dismissal even after a TPPA petition was filed, thereby avoiding the potential that a successful defendant would be awarded attorneys’ fees, this opinion indicates that if a motion for summary judgment is filed in conjunction with a TPPA petition, the motion for summary judgment will prevent the nonsuit and will preserve the defendant’s ability to argue under the TPPA.
This opinion was released 10.5 months after oral arguments.