Day on Torts
When appealing a trial court’s order dismissing or refusing to dismiss a case under the Tennessee Public Protection Act (TPPA), the appeal “must be filed within thirty days of the entry of that order.”
In Laferney v. Livesay, No. E2021-00812-COA-R3-CV, 2022 WL 14199150 (Tenn. Ct. App. Oct. 25, 2022), plaintiff filed multiple tort claims against multiple defendants, including libel claims against certain defendants based on their social media statements related to the death of a dog who died while in the care of plaintiff’s dog training business. The libel defendants filed motions to dismiss pursuant to the TPPA, which the trial court granted on December 10, 2020. The trial court also found that “the TPPA requires an award of attorney’s fees when an action is dismissed under that chapter” and it asked the prevailing parties’ attorneys to submit fee affidavits within fifteen days of the entry of the dismissal order. The trial court then entered an order awarding some attorneys’ fees on March 5, 2021, then due to some late filing, entered another order regarding attorneys’ fees on June 24, 2021. Plaintiff appealed the TPPA dismissal from that June 24th order.
The TPPA is Tennessee’s anti-SLAPP statute, which stands for “strategic lawsuits against public participation.” Although civil cases can typically only be appealed after the entry of a final judgment, “the TPPA provides parties the right to an immediate appeal to [the Court of Appeals] when a motion for dismissal under the TPPA is either granted or denied.” (citing Tenn. Code Ann. § 20-17-106 and Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651 (Tenn. Ct. App. 2021)). “Appeals pursuant to section 20-17-106 lie in this Court whether the order is final or interlocutory, and regardless of whether the case is appealed from general sessions or circuit court.” (quoting Nandigam). Here, the parties disagreed about whether the time within which plaintiff could file her notice of appeal ran from the December 2020 order of dismissal or the June 2021 order awarding attorney’s fees.
The Court of Appeals noted that before addressing the timeliness of the appeal, it first needed to consider whether the TPPA applied to this case, as plaintiff argued that the trial court erred by applying the TPPA. The Court found that plaintiff had waived the argument that the TPPA did not apply for two reasons. First, plaintiff asserted that the TPPA did not apply because the actions in this case took place in May 2019 and the TPPA did not take effect until July 1, 2019. The Court noted, however, that plaintiff’s copies of the alleged social media posts were not date-stamped, that the complaint did not clearly lay out a timeline of the allegedly libelous statements, and that plaintiff’s “own allegations suggest that the purported tortious activity occurred over an undefined period of time.” Because plaintiff did not properly develop this timeline argument, it was deemed waived. Second, plaintiff argued that the TPPA was unconstitutional as applied here, but because “nothing in the record indicate[d] that any party provided notice to the Tennessee Attorney General either in the trial court proceedings or on appeal,” the constitutional challenge was waived. Because both of plaintiff’s arguments that the TPPA did not apply were waived, the Court of Appeals affirmed the application of the TPPA to this case.
The core issue in this case was whether plaintiff’s appeal of the TPPA dismissal was timely filed. Defendants argued that the appeal under Tenn. Code Ann. § 20-17-106 should have been filed within thirty days of the trial court’s order of dismissal, and the Court of Appeals agreed in this matter of first impression. The Court first considered when the time period for appealing a TPPA dismissal (or refusal of dismissal) begins to run, noting that the Nandigam case cited above held that “the right to immediately appeal that interim order was ‘triggered’ notwithstanding the fact that the issue of attorney’s fees remained outstanding.” Although the statute itself does not provide a time limit for appeals, it states that the “Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals” arising under the TPPA. Based on the statute, the Rules, and prior case law, the Court held that “immediate appeals under section 106 must be filed within 30 days of a court’s order ‘dismissing or refusing to dismiss a legal action pursuant to a petition filed under’ the TPPA.” (citing Tenn. Code Ann. § 20-17-106).
Because plaintiff in this case did not file her appeal of the TPPA dismissal within thirty days of the order of dismissal, but instead waited until months later when the attorneys’ fees awards had been completed, the Court ruled that the appeal was untimely and it lacked jurisdiction to consider the appeal. The appeal was therefore dismissed.
This is an important case, as it provides further interpretation of the TPPA, a relatively new statute in Tennessee. As the TPPA comes up in more and more litigation, this ruling regarding timeliness of a TPPA dismissal appeal is critical information for attorneys litigating cases with TPPA issues.
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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